No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
Appears in 4 contracts
Sources: Share Purchase Agreement (Sonosite Inc), Share Purchase Agreement (Sonosite Inc), Share Purchase Agreement (Sonosite Inc)
No Solicitation. From and after the Agreement Date (a) Subject to Section 5.2(b), until the Closing or termination earlier of the Effective Time and the date on which this Agreement is terminated pursuant to Article VIIISection 7.1, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders willshall not, nor will any of them shall it authorize or permit any of its Subsidiaries or any of its or their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives to, directly or indirectlyindirectly through another Person, except as otherwise provided below: (i) solicit, initiate, seek, entertain, or take any action outside the ordinary course of business to encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutesinduce, or that would reasonably be expected to lead to, an Acquisition Proposalthe making, (ii) enter into, participate in, maintain submission or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regardingannouncement of, any inquiry, expression of interest, proposal or offer inquiry that constitutes, or would is reasonably be expected likely to lead to, an Acquisition Proposal; (ii) other than informing Persons of the provisions contained in this Section 5.2, enter into, continue or participate in any discussions or any negotiations regarding any Acquisition Proposal or otherwise take any action outside the ordinary course of business to encourage, facilitate, or induce any effort or attempt to make or implement an Acquisition Proposal; (iii) agree to, accept, furnish any non-public information regarding the Company to any Person in connection with or in response to or which would reasonably be expected to lead to an Acquisition Proposal; (iv) approve, endorse or recommend (an Acquisition Proposal or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent intent, memorandum of understanding or any other Contract contemplating an Acquisition Proposal or otherwise relating requiring the Company to any Acquisition Proposal, abandon or terminate its obligations under this Agreement; or (v) submit resolve or agree to do any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries will and their respective Representatives to, (x) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons Person previously conducted prior to or on the Agreement Date with respect to any Acquisition Proposal, and (y) promptly request the parties to any confidentiality or similar agreement relating to an Acquisition Proposal to promptly return or destroy any confidential information previously furnished or made available by the Company or its Representatives thereunder. If Any action by a Subsidiary or Representative of the Company that would, if taken by the Company, be a violation of the restrictions of this Section 5.2 shall be deemed a breach of this Section 5.2 by the Company.
(b) Notwithstanding anything in this Section 5.2 to the contrary, at any time prior to the time the Required Stockholder Vote is obtained, in response to an unsolicited bona fide written Acquisition Proposal that is presented to the Company Representative, whether in his or her capacity as such or in any other capacity, takes any action (and not withdrawn) that the Company Board determines in good faith constitutes, or is obligated reasonably likely to result in, a Superior Proposal (after consultation with its outside legal counsel and its financial advisor (who shall be either Covert & Co. or a nationally recognized financial advisor)), the Company may, upon a good faith determination by the Company Board (after receiving the advice of its outside legal counsel) that failure to take such action would be inconsistent with the Company Board's fiduciary duties to the Company's stockholders under applicable Law: (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal (and such Person's Representatives); and (B) participate in discussions or negotiations with the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal (the taking of any action addressed in (A) or (B), a "Superior Proposal Response"), provided, however, that prior to a Superior Proposal Response (x) the Company and such Person enter into a confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement (including, without limitation, any "standstill" and non-solicitation provisions, in each case, no less favorable to the Company than those contained in the Confidentiality Agreement) and provide a copy to Parent thereof; and (y) such information shall have been provided to Parent in writing.
(c) The Company shall promptly advise Parent in writing, in no event later than forty-eight (48) hours after receipt of any Acquisition Proposal of the Company's intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person, and shall, in any such notice to Parent, indicate the identity of the Person making such Acquisition Proposal and the material terms and conditions of any proposal or offer or the nature of any inquiries or contacts, and thereafter, shall promptly keep Parent informed, on a current basis, of all material developments affecting the status and the material terms of any such Acquisition Proposal, including the material terms and conditions of the Acquisition Proposal and any material changes thereto and of the status of any such discussions or negotiations.
(d) The Company Board shall not: (i) fail to make the Company Board Recommendation to the Company's stockholders; (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation; (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal; or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to as a "Change in Company Board Recommendation"). Notwithstanding the foregoing, the Company Board may, at any time prior to the time the Required Stockholder Vote is obtained, take any of the actions set forth in Sections 5.2(d)(i)-(iii) below; provided, however, that prior to taking any such action, the Company complies with Section 5.2(e) of this Agreement.
(i) effect a Change in Company Board Recommendation in response to an Acquisition Proposal if the Company Board concludes in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the Company's stockholders under applicable Law and the Company Board concludes in good faith, after consultation with the Company's financial advisor (who shall be either Covert & Co. or a nationally recognized financial advisor), that the Acquisition Proposal constitutes a Superior Proposal;
(ii) effect a Change in Company Board Recommendation in response to an Intervening Event if the Company Board concludes in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the Company's stockholders under applicable Law;
(iii) terminate this Agreement pursuant to this Section 6.1 7.1(h) and enter into a Company Acquisition Agreement, but only if the Company receives an Acquisition Proposal that the Company Board concludes in good faith, after consultation with the Company's financial advisor, constitutes a Superior Proposal and the Company Board concludes in good faith, after consultation with outside counsel, that the failure to cause enter into such Company Representative not definitive agreement would be inconsistent with its fiduciary duties to takethe Company's stockholders under applicable Law.
(e) Notwithstanding anything to the contrary set forth in Section 5.2(d), then the Company shall not be entitled to: (i) make a Change in Company Board Recommendation pursuant to Section 5.2(d)(i) or Section 5.2(d)(ii); or (ii) terminate this Agreement and enter into any Company Acquisition Agreement pursuant to Section 5.2(d)(iii), unless: (A) the Company shall have first provided prior written notice to Parent that it intends to (x) make a Change in Company Board Recommendation (a "Recommendation Change Notice"), or (y) terminate this Agreement pursuant to Section 7.1(h) in response to a Superior Proposal (a "Superior Proposal Notice"), which notice shall, if the basis for the proposed action by the Company Board is an Intervening Event, contain a description of the events, facts and circumstances giving rise to such proposed action or, if the basis for the proposed action by the Company Board is a Superior Proposal, contain a description of the material terms and conditions of such Superior Proposal, including a copy of the Company Acquisition Agreement in the form to be entered into (it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed for all purposes to be a Change in Company Board Recommendation); and (B) Parent does not make, within five (5) days after the receipt of such notice, a proposal that would, in the good-faith judgment of the Company Board (after (a) negotiating in good faith with Parent to amend the terms of this Agreement and (b) consultation with outside counsel and, in the case of a Superior Proposal, the Company's financial advisor, who shall be either Covert & Co. or a nationally recognized financial advisor), cause such events, facts and circumstances to have breached no longer form the basis for the Company Board to effect a Change in Company Board Recommendation or cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal, as the case may be. Any material changes with respect to such events, facts or circumstances mentioned above, or material changes to the financial terms of such Superior Proposal, as the case may be, occurring prior to the Company's effecting a Change in Company Board Recommendation or terminating this Agreement pursuant to Section 7.1(h) shall require the Company to provide to Parent a new Recommendation Change Notice or Superior Proposal Notice and a new five (5) day period.
(f) Nothing contained in this Section 6.15.2 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing to the Company's stockholders a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; or (ii) making any disclosure to the Company's stockholders if, in the good-faith judgment of the Company Board, after consultation with outside counsel, failure to so disclose would be inconsistent with its fiduciary duties under applicable Law; provided, however, that this Section 5.2(f) shall not be deemed to permit the Company Board to effect a Change in Company Board Recommendation, except to the extent permitted by Section 5.2(e).
Appears in 3 contracts
Sources: Agreement and Plan of Merger and Reorganization (SRS Labs Inc), Merger Agreement (Dts, Inc.), Merger Agreement (SRS Labs Inc)
No Solicitation. From and after (a) During the period from the Agreement Date and continuing until the Closing or earlier of the termination of this Agreement pursuant to Article VIIIand the Effective Time, neither the Company nor any of its Subsidiaries nor any of will not, and the Company Shareholders will, nor will any of them not authorize or permit any of their respective officers, directors, affiliates, shareholders or employees its Representatives or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Subsidiary to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders Company Securityholders or (vi) enter into any other transaction or series of Company transactions not in the ordinary course of business consistent with past practice, the consummation of which would impede, interfere with, prevent or any Subsidiary. Each delay, or would reasonably be expected to impede, interfere with, prevent or delay, the consummation of the Merger or the other Transactions. The Company will, and will cause its Subsidiaries will Representatives to, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal and (B) immediately revoke or withdraw access of any Person (other than Acquirer and its Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company in connection with an Acquisition Proposal and request from each Person (other than Acquirer and its Representatives) the prompt return or destruction of all non-public information with respect to the Company previously provided to such Person in connection with an Acquisition Proposal. If any Company Representativeof the Company’s Representatives, whether in his his, her or her its capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 5.2 not to cause authorize or permit such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.15.2.
(b) The Company shall immediately (but in any event, within 24 hours) notify Acquirer orally and in writing after receipt by the Company (or, to the knowledge of the Company, by any of the Company’s Representatives), of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for non-public information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquirer and its Representatives. Such notice shall describe (A) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (B) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request. The Company shall keep Acquirer fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquirer a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. The Company shall provide Acquirer with 48 hours prior notice (or such lesser prior notice as is provided to the members of the Board) of any meeting of the Board at which the Board is reasonably expected to discuss any Acquisition Proposal.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Workday, Inc.), Agreement and Plan of Merger (Facebook Inc)
No Solicitation. From and after (a) During the Agreement Date until the Pre-Closing or termination of this Agreement pursuant to Article VIIIPeriod, neither the Company nor any of shall not, directly or indirectly, and shall cause the other Acquired Companies, its Subsidiaries nor any Representatives and the Representatives of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Acquired Companies not to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitateinduce or facilitate any inquiries regarding, support or induce the making, submission submission, reaffirmation or announcement of any inquiry, expression of interest, proposal Acquisition Proposal or offer take any action that constitutes, or would could reasonably be expected to lead to, to an Acquisition Proposal, (ii) enter intofurnish any nonpublic information regarding any of the Acquired Companies, participate in, maintain or continue provide any communications (except solely to provide written notice as access to the existence books, records or personnel of these provisions) or negotiations regardingany of the Acquired Companies, or deliver or make available to any Person any non-public information in connection with respect to, or take any other action regarding, any inquiry, expression in response to an Acquisition Proposal or an inquiry or indication of interest, proposal or offer interest that constitutes, or would could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations with any Person in respect of, or otherwise cooperate with respect to, any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent, arrangement, understanding, agreement, agreement in principle or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.3(a) by any Representative of any of the Acquired Companies, whether or not such Person is purporting to act on behalf of any of the Acquired Companies or otherwise, shall be deemed to be a breach of this Section 6.3(a) by the Company. Notwithstanding the foregoing, from the date hereof and prior to the adoption of this Agreement by the Required Company Shareholder Vote, nothing in this Agreement (including this Section 6.3(a)) shall, subject to Section 6.3(b), prohibit the Company from furnishing nonpublic information regarding the Acquired Companies to, or entering into or conducting discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal that is submitted to the Company by such Person during such period (and not withdrawn) which is reasonably likely to result in a Superior Proposal if (A) neither the Company nor any Representative of any of the Acquired Companies shall have breached or violated this Section 6.3(a) in any respect that results in such Acquisition Proposal, (B) the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s or the Special Committee’s outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, (C) the Company Board or its Special Committee concludes in good faith, after consultation with its legal counsel and an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and (D) prior to furnishing any such nonpublic information to such Person, the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and customary “standstill” provisions. As promptly as reasonably practicable following the furnishing of nonpublic information pursuant to this Section 6.3(a), the Company shall provide to Parent any nonpublic information concerning any of the Acquired Companies that is furnished to any third Person or its Representatives which was not previously provided to Parent.
(b) From and after the execution of this Agreement, except to the extent that doing so would result in a breach of its fiduciary duties, each of the Company Parties shall promptly, and in any event within forty-eight (48) hours following the initial receipt by any Acquired Company of any Acquisition Proposal, any indication by any Person considering making an Acquisition Proposal, any request for information relating to any of the Acquired Companies (other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal) or any inquiry or request for discussions or negotiations regarding any Acquisition Proposal which any of the Acquired Companies or any of their respective Representatives may receive after the date hereof, advise Parent orally and in writing of (i) the receipt, directly or indirectly, of any such inquiries, negotiations or proposals relating to any Acquisition Proposal by the Company, (ii) the material terms and conditions of such Acquisition Proposal, indication, inquiry or request, together with a copy thereof (if available) or if not in writing, a written description thereof, (iii) the identity of the Person making such Acquisition Proposal and (iv) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person. The Company shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such Acquisition Proposal, indication, inquiry or request. None of the Acquired Companies shall, after the date hereof, enter into any confidentiality agreement that would prohibit them from providing such information to Parent.
(c) The Company Board and the Special Committee may not (i) withdraw, qualify or modify, in a manner adverse to the Buyer Parties, or fail to make, the Company Board Recommendation, (ii) approve, authorize or recommend, or propose publicly or approve, authorize or recommend, an Acquisition Proposal, (iii) agree to, accept, approve, endorse authorize or recommend permit the Company to enter into any agreement (an “Acquisition Agreement”) contemplating an Acquisition Proposal or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into permit the Acquired Companies to take any letter of intent action to exempt or make not subject to any “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover Legal Requirements or any other Contract contemplating “excess share” or otherwise relating to any Acquisition Proposal, or similar ownership limitation provisions (vincluding the Ownership Limitation) submit any Acquisition Proposal applicable to the vote of Company, any shareholders of Company Person (other than the Buyer Parties and their respective Affiliates) or any Subsidiaryaction taken by any such Person, which Person or action would have otherwise have been subject to the restrictive provisions thereof and/or not exempt therefrom. Each Notwithstanding anything to the contrary herein, at any time prior to the earlier of the Required Company Stockholder Vote and the termination of this Agreement pursuant to Article XI, the Company Board or its Special Committee may take one or more of the actions described in the preceding clauses (i) – (iv) in response to a Superior Proposal if the Company Board or its Special Committee concludes in good faith, after consultation with the Company’s (or the Special Committee’s, as applicable) outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Company Board to the Company’s shareholders under applicable Legal Requirements, but only after following the Superior Proposal Termination Procedures.
(d) Until the earlier of the Merger Effective Time and its Subsidiaries will the termination of this Agreement pursuant to Article XI, the Company shall immediately (i) cease and cause to be terminated any and all existing activitiessolicitation, discussions discussion, negotiation or negotiations with other action conducted by any Persons conducted prior to of the Acquired Companies or on the Agreement Date any of their respective Representatives with respect to any Acquisition Proposal. If Proposal effective as of the date hereof, (ii) request that all confidential information previously furnished to any third party be returned promptly and (iii) deny access to any data room containing any such information to any third party (other than the Buyer Parties and their respective Representatives), in each case, subject to the Company’s rights and obligations in Section 6.3(a).
(e) The Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative agrees not to takerelease or permit the release of any Person from, then or to waive or permit the Company shall waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Companies is a party, and will use its reasonable best efforts to enforce or cause to be deemed for all purposes enforced each such agreement at the request of this Agreement to have breached this Section 6.1Parent.
Appears in 3 contracts
Sources: Merger Agreement (Winston Hotels Inc), Merger Agreement (Winston Hotels Inc), Merger Agreement (Inland American Real Estate Trust, Inc.)
No Solicitation. From (a) Except as set forth in the Merger Agreement, on the date hereof, each Holder shall, and after shall cause its controlled Affiliates to, and shall instruct, and shall use its commercially reasonable efforts to cause, its and its controlled Affiliates’ Representatives acting on its behalf to, cease and cause to be terminated any solicitation and any and all existing discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal.
(b) Except as set forth in the Agreement Date until Merger Agreement, from the Closing or termination date of this Agreement pursuant until the earlier to Article VIIIoccur of the termination of the Merger Agreement in accordance with its terms and the Effective Time, neither the Company (i) no Holder shall nor any of its Subsidiaries their respective controlled Affiliates shall, nor shall any Holder or any of the Company Shareholders will, nor will any of them their respective controlled Affiliates authorize or knowingly permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives acting at their direction and on their behalf to, directly or indirectly, (iA) solicit, initiate, seek, entertain, encourage, facilitate, support initiate or induce knowingly facilitate or encourage (including by way of furnishing non-public information) the making, submission or announcement making of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iiB) enter into, engage in or otherwise participate in, maintain or continue in any communications discussions (except solely to provide written notice as notify a Person that makes any inquiry or offer with respect to an Acquisition Proposal of the existence of these provisionsthis Section 6(b) to clarify whether any such inquiry, offer or proposal constitutes an Acquisition Proposal) or negotiations regarding, or deliver or make available furnish to any other Person any non-public information in connection with respect to, or take any other action regarding, any inquiry, expression for the purpose of interest, proposal knowingly encouraging or offer that constitutes, or would reasonably be expected to lead tofacilitating, an Acquisition ProposalProposal , (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (ivC) enter into any letter of intent intent, acquisition agreement, agreement in principle or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date similar agreement with respect to an Acquisition Proposal or (D) waive or release any Person from, fail to use reasonable best efforts to enforce any standstill agreement or any standstill provisions of any Contract entered into in respect of a potential Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
Appears in 3 contracts
Sources: Support Agreement (Hill International, Inc.), Tender and Support Agreement (Engine Capital, L.P.), Tender and Support Agreement (Hill International, Inc.)
No Solicitation. From and after the Agreement Date date hereof until the Closing or termination of this Agreement pursuant to Article VIIISection 6, neither the Company nor any Shareholder, in his, her or its capacity as a shareholder of its Subsidiaries nor any of the Company Shareholders willHCBF, shall not, nor will shall such Shareholder authorize any of them authorize or permit any of their respective officerspartner, directorsofficer, affiliatesdirector, shareholders or employees or any investment banker, attorney or other advisor or representative retained by of, such Shareholder or any of them (all of the foregoing collectively being the “Company Representatives”) his, her or its Affiliates to, directly or indirectlyindirectly (and, to the extent applicable to Shareholder, such Shareholder shall use commercially reasonable efforts to prohibit any of his, her or its representatives or Affiliates to), (ia) initiate, solicit, initiate, seek, entertain, induce or knowingly encourage, facilitateor take any action to facilitate the making of, support or induce the making, submission or announcement of any inquiry, expression of interest, offer or proposal or offer that which constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iib) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingregarding any Acquisition Proposal or furnish, or deliver or make available otherwise afford access, to any Person person (other than CenterState) any non-public information or data with respect to, to HCBF or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected otherwise relating to lead to, an Acquisition Proposal, (iiic) agree toenter into any agreement, acceptagreement in principle or letter of intent with respect to an Acquisition Proposal or approve or resolve to approve any Acquisition Proposal or any agreement, approve, endorse agreement in principle or recommend (or publicly propose or announce any intention or desire letter of intent relating to agree to, accept, approve, endorse or recommend) any an Acquisition Proposal, (ivd) enter into any letter of intent or any solicit proxies with respect to an Acquisition Proposal (other Contract contemplating than the Merger Agreement) or otherwise relating encourage or assist any party in taking or planning any action that would compete with, restrain or otherwise serve to any Acquisition Proposalinterfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, or (ve) submit any Acquisition Proposal to the initiate a shareholders’ vote or action by consent of any HCBF’s shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any an Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
Appears in 3 contracts
Sources: Merger Agreement (CenterState Banks, Inc.), Merger Agreement (CenterState Banks, Inc.), Merger Agreement (HCBF Holding Company, Inc.)
No Solicitation. From (a) Except as expressly permitted by this Section 6.3, from and after the Agreement Date date hereof until the Closing or Effective Time, or, if earlier, the termination of this Agreement pursuant in accordance with Article 8, the Company shall not, and shall cause its Affiliates and its and their respective Representatives not to, on behalf of the Company, directly or indirectly initiate, solicit, facilitate or knowingly encourage any Acquisition Proposal or the making or submission thereof or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal. The Company shall, and shall cause its Affiliates to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussion or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Affiliates to return or destroy (and confirm destruction of) all such information. Except as expressly permitted by this Section 6.3, from and after the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with Article VIII8, neither the Company Board nor any committee thereof shall (i) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Acquisition Proposal, (ii) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to the Acquirors or Merger Sub, the Company Board Recommendation, (iii) approve, authorize, cause or permit the Company or any of its Subsidiaries nor to enter into any merger agreement, acquisition agreement, letter of intent, memorandum of understanding or other similar agreement relating to any Acquisition Proposal (a “Company Acquisition Agreement”), or (iv) resolve or agree to do any of the Company Shareholders will, nor will foregoing (any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of action set forth in the foregoing collectively being the “Company Representatives”) to, directly or indirectly, clauses (i) solicitthrough (iv) of this sentence, initiatea “Change of Board Recommendation”).
(b) Notwithstanding anything to the contrary contained in Section 6.3(a), seekif at any time following the date hereof and prior to 6:00 p.m., entertainNew York City time, encourageon the Stockholder Consent Delivery Date (i) the Company has received a bona fide written Acquisition Proposal from a Third Party that is not solicited in violation of Section 6.3(a) and the Company, facilitateits Affiliates and its and their Representatives are not in willful and material breach of this Section 6.3 with respect to such Third Party and (ii) the Company Board (or a duly authorized committee thereof) determines in good faith, support based on information then available and after consultation with outside counsel and based on financial analyses reasonably believed to be reasonable by the Company Board, that such Acquisition Proposal constitutes, or induce may result in, a Superior Proposal, then the makingCompany may (x) furnish information with respect to the Company and its Subsidiaries to the Third Party making such Acquisition Proposal, submission its Representatives and potential sources of financing pursuant to (but only pursuant to) one or announcement more Acceptable Confidentiality Agreements, provided that the Company shall as soon as reasonably practicable but no later than the time period for notice provided in Section 6.3(c) below, provide the Acquirors any non-public information concerning the Company or any of its Subsidiaries that is provided to such person or its Representatives unless such information has been previously provided or made available to the Acquirors and (y) participate in discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal.
(c) The Company shall promptly (and in any event within 48 hours) notify the Acquirors in writing of the receipt of any inquiryAcquisition Proposal, expression any request for non-public information relating to the Company or any of interestits Subsidiaries made in connection with an Acquisition Proposal or request for access to the business, proposal properties, assets, books or offer records of the Company or any of its Subsidiaries made in connection with an Acquisition Proposal, which notice shall identify the Third Party making such Acquisition Proposal and include a copy of such Acquisition Proposal (or, where such Acquisition Proposal was not submitted in writing, a reasonably detailed written description of such Acquisition Proposal including its material terms and conditions), and whether the Company has furnished non-public information to, or entered into negotiations or discussions with, such Third Party. Without limiting the foregoing, the Company shall keep the Acquirors promptly informed (and in any event within 48 hours) in all material respects of the status of, and any material communications relating to, such Acquisition Proposal (including any change in the price or other material terms thereof). The Company agrees that it and its Subsidiaries will not take any action that would prohibit the Company or any of its Subsidiaries from complying with their respective obligations under this Section 6.3.
(d) Notwithstanding anything to the contrary contained in Section 6.3(a), if (i) the Company has received a bona fide written Acquisition Proposal from a Third Party that is not solicited in violation of Section 6.3(a), (ii) the Company, its Affiliates and its and their Representatives are not in willful and material breach of this Section 6.3 with respect to such Third Party, and (iii) the Company Board (or any duly authorized committee thereof) determines in good faith after consultation with outside legal counsel and based on financial analyses reasonably believed to be reasonable by the Company Board, that such Acquisition Proposal constitutes, or would reasonably be expected to lead toresult in, an a Superior Proposal, the Company Board may at any time prior to 6:00 p.m., New York City time, on the Stockholder Consent Delivery Date, effect a Change of Board Recommendation with respect to such Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as subject to the existence requirements of these provisions) or negotiations regarding, or deliver or make available this Section 6.3(d). The Company shall not be entitled to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression effect a Change of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated Board Recommendation pursuant to this Section 6.1 6.3(d) unless:
(i) the Company shall have provided to the Acquirors at least three (3) Business Days’ prior written notice (such period and any period commenced by a new written notice delivered pursuant to the last sentence of Section 6.3(d)(iii), the “Notice Period”) of the Company’s intention to take such actions, which notice shall specify the basis for such Change of Board Recommendation, the identity of the Third Party making such Superior Proposal, the material terms and conditions of such Superior Proposal, and shall include a copy of the applicable Company Acquisition Agreement and any other material documents with respect thereto;
(ii) during the Notice Period, if requested by the Acquirors, the Company shall have, and shall have caused its Representatives to have, engaged in good faith negotiations with the Acquirors and their Representatives regarding any amendments or modifications to this Agreement and/or the Real Estate Purchase Agreement proposed by the Acquirors and intended to cause the relevant Acquisition Proposal to no longer constitute a Superior Proposal; and
(iii) at the end of such Notice Period, the Company Representative not Board shall have considered in good faith any proposed amendments or modifications to takethis Agreement and/or the Real Estate Purchase Agreement, including a change to the price terms hereof and thereof and the other agreements contemplated hereby that may be offered by the Acquirors (the “Proposed Changed Terms”) no later than 6:00 p.m., New York City time, on the last day of the Notice Period and shall have determined in good faith after consultation with outside legal counsel that the Superior Proposal would continue to constitute, or result in, a Superior Proposal if such Proposed Changed Terms were to be given effect. In the event of any change to the price terms or any other material revision or amendment to the terms of such Superior Proposal, then the Company shall be deemed for all purposes required to deliver a new written notice to the Acquirors and to again comply with the requirements of this Agreement Section 6.3(d) (which shall apply mutatis mutandis) with respect to have breached such new written notice.
(e) Nothing contained in this Section 6.16.3 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act; (ii) making any disclosure to the stockholders of the Company if the Company Board (or any duly authorized committee thereof) determines in good faith after consultation with outside legal counsel that the failure to make such disclosure would reasonably be expected to breach its fiduciary duties or violate applicable Law; or (iii) issuing a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act; provided that that in each case of (i), (ii) and (iii), the Company Board does not include any statement that itself would be a Change of Board Recommendation.
(f) The Company acknowledges and agrees that any violation of the restrictions set forth in this Section 6.3 by any of Affiliates or its their Representatives acting on behalf of the Company or its Affiliates shall be deemed to be a breach of this Section 6.3 by the Company.
Appears in 3 contracts
Sources: Merger Agreement (Eldorado Resorts, Inc.), Merger Agreement (Icahn Enterprises Holdings L.P.), Merger Agreement (Gaming & Leisure Properties, Inc.)
No Solicitation. From and after the Agreement Date until the Closing or termination (a) Except as set forth in this Section 4.3, upon execution of this Agreement pursuant the Shareholder hereby agrees that it shall, and shall direct its Representatives, immediately to Article VIIIcease and cause to be terminated all existing discussions and negotiations with any Person conducted heretofore with respect to any Acquisition Proposal or potential Acquisition Proposal. During the term of this Agreement and except as permitted by Section 4.3(b), neither the Company nor Shareholder agrees that it shall not, and it shall not permit or authorize any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, to (i) solicit, initiate, seekendorse, entertain, encourage, facilitate, support encourage or induce the making, submission or announcement of facilitate any inquiry, expression of interestproposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that constitutes, or would is reasonably be expected likely to lead to, an to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person (other than Parent, Merger Sub or any non-public of their Affiliates or designees) any information or data with respect to, or take otherwise cooperate in any other action regardingway with, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse cause or recommend (permit the Company or publicly propose or announce any intention or desire of its Subsidiaries to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or any other similar Contract contemplating constituting or otherwise relating to, or which is intended to or is reasonably likely to lead to, any Acquisition Proposal, or that requires the Company to abandon or terminate the Merger Agreement, (iv) make or participate in, directly or indirectly, a “solicitation” of “proxies” (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any Company Shares in connection with any vote or other action on any of the Section 2.1(a) Matters, other than to recommend that the shareholders of the Company vote in favor of the adoption of the Merger Agreement and as otherwise expressly provided in this Agreement or otherwise to vote or consent with respect to Covered Shares in a manner that would not violate Section 2.1, or (v) submit agree to do any Acquisition Proposal of the foregoing.
(b) Notwithstanding anything to the vote of any shareholders of contrary in this Agreement, solely to the extent the Company or any Subsidiary. Each is permitted to take the actions set forth in Section 5.2(a) of the Company Merger Agreement with respect to an Acquisition Proposal, the Shareholder and its Subsidiaries Representatives will immediately cease and cause be free to be terminated participate in any and all existing activities, discussions or negotiations regarding such Acquisition Proposal with any Persons conducted prior to or on the Agreement Date with respect to any Person making such Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action provided that (i) the Company is obligated pursuant to this Section 6.1 to cause such Company Representative Shareholder has not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.14.3 and (ii) such action by the Shareholder and its Representatives would be permitted to be taken by the Company pursuant to Section 5.2(a) of the Merger Agreement.
(c) For the avoidance of doubt, nothing in this Section 4.3 shall affect in any way the obligations of any Person (including the Company) under Section 5.2 of the Merger Agreement.
Appears in 3 contracts
Sources: Voting Agreement (Del-Ta Engineering Equipment Ltd.), Voting Agreement (Del-Ta Engineering Equipment Ltd.), Voting Agreement (Dovrat Shlomo)
No Solicitation. From and after Subject to Section 22 hereof, prior to the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIIITermination Date, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) such Stockholder agrees not to, directly or indirectly, (i) solicit, initiate, seeksolicit or knowingly encourage or knowingly facilitate any inquiries or requests for information with respect to, entertainor the making of, encourageany inquiry regarding, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to result in or lead to, any Acquisition Proposal, (ii) engage in, continue or otherwise participate in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information or data to, any Person relating to any proposal, offer, inquiry or request for information that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, (iv) execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, confidentiality agreement, merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement for or relating to any Acquisition Proposal or (v) resolve or agree to do any of the foregoing. Such Stockholder also agrees that immediately following the execution of this Agreement such Stockholder shall, and shall use commercially reasonable efforts to cause its Representatives to, cease any solicitations, discussions or negotiations with any Person (other than the Parties and their respective Representatives) conducted heretofore in connection with an Acquisition Proposal or any inquiry or request for information that could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate or result in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal. Such Stockholder shall promptly (and in any event within one Business Day) notify, (iii) agree toin writing, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and of its Subsidiaries will immediately cease and cause to be terminated any and all existing activitiesreceipt, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her its capacity as such or a stockholder of Pubco and not in any other capacity, takes of any action inquiry, proposal, offer or request for information received after the date hereof that the Company is obligated pursuant constitutes, or could reasonably be expected to this Section 6.1 to cause such Company Representative not to takeresult in or lead to, then the Company shall be deemed for all purposes of any Acquisition Proposal. Notwithstanding anything in this Agreement to have breached the contrary, (i) such Stockholder shall not be responsible for the actions of Pubco or its Board of Directors (or any committee thereof), any Subsidiary of Pubco, or any officers, directors (in their capacity as such), employees and professional advisors of any of the foregoing (the “Pubco Related Parties”), including with respect to any of the matters contemplated by this Section 6.16(a), (ii) such Stockholder makes no representations, warranties, covenants or agreements with respect to the actions of Pubco or any of the Pubco Related Parties, and (iii) any breach by Pubco of its obligations under Sections 7.01 and 7.02 of the Merger Agreement shall not, in and of itself, be considered a breach of this Section 6(a), (it being understood for the avoidance of doubt that such Stockholder shall remain responsible for any breach by such Stockholder or his, her or its Representatives of this Section 6(a)).
Appears in 3 contracts
Sources: Merger Agreement (Greenidge Generation Holdings Inc.), Merger Agreement (Support.com, Inc.), Support Agreement (Greenidge Generation Holdings Inc.)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the (a) The Company nor any of its Subsidiaries nor any of the Company Shareholders willshall not, nor will any of them shall it authorize or permit any of their the Company Subsidiaries to, and it shall use its reasonable best efforts to cause its and the Company Subsidiaries’ respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, seeksolicit or encourage (including by way of furnishing information or assistance), entertainor knowingly induce, encourageor take any other action designed to, facilitateor that is reasonably expected to, support or induce facilitate any inquiry with respect to the making, submission or announcement of of, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition constitutes a Takeover Proposal, (ii) enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding relating to any Takeover Proposal, (iii) enter into, continue or otherwise participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public information or data or access to its properties with respect to, or otherwise cooperate with or take any other action regarding, to facilitate any inquiry, expression of interest, proposal or offer that (A) constitutes, or would is reasonably be expected to lead to, an Acquisition Proposalany Takeover Proposal or (B) requires the Company to abandon, (iii) agree to, accept, approve, endorse terminate or recommend (fail to consummate the Merger or publicly propose any other transactions contemplated by this Agreement or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into submit to the shareholders of the Company for their approval any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Takeover Proposal, or (v) submit agree or publicly announce an intention to take any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the foregoing actions.
(b) The Company shall, and shall cause the Company Subsidiaries to, and shall use its Subsidiaries will reasonable best efforts to cause its and the Company Subsidiaries’ Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date their Representatives with respect to any Acquisition Takeover Proposal and will use its reasonable best efforts to cause any such Person or such Person’s Representatives in possession of any confidential information about the Company or the Company Subsidiaries that was previously furnished to such Persons since November 1, 2008 in connection therewith to be returned or destroyed. The Company shall promptly inform its Representatives and the Representatives of all Company Subsidiaries of the obligations undertaken in this Section 5.3. The Company agrees not to, and to cause the Company Subsidiaries not to, release any third party from the confidentiality and standstill provisions of any agreement (or terminate, amend, modify or waive any provision of any such agreement) to which the Company or any Company Subsidiaries is or may become a party, 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 terms and provisions thereof in any court of the United States of America or any state having jurisdiction, and shall immediately take all steps necessary to terminate any approval that may have been heretofore given under any such provisions authorizing any Person to make a Takeover Proposal. If Without limiting the foregoing, any violation of the restrictions set forth in this Section 5.3 by any of the Company’s or the Company’s Subsidiaries’ Representatives, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of the Company, a Company Subsidiary or otherwise, shall be deemed to be a material breach of this Agreement by the Company.
(c) Notwithstanding the foregoing, the Company may, prior to the Company Shareholder Approval, in response to a bona fide written unsolicited Takeover Proposal (so long as such Takeover Proposal was received after the date hereof and was not initiated, solicited, encouraged, or knowingly induced or facilitated, directly or indirectly, in violation of this Section 5.3 and the Company, in receiving such Takeover Proposal has otherwise fully complied with the terms of Section 5.3(a) and Section 5.3(d) with respect to such Takeover Proposal), subject to compliance with Section 5.3(e):
(1) furnish information with respect to it and the Company Subsidiaries to the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a confidentiality agreement (a copy of which shall be provided to Parent promptly after its execution) containing confidentiality and other provisions that are substantially similar to the comparable provisions of the Confidentiality Agreement and are no less restrictive than those contained in the Confidentiality Agreement are to Parent, provided that such confidentiality agreement shall not contain any provisions that would prevent the Company from complying with its obligation to provide the required disclosure to Parent pursuant to Section 5.3(d) and Section 5.3(e), and provided further that all such information provided to such Person has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the time it is provided to such Person; and
(2) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in each case, (A) such Takeover Proposal constitutes a Superior Proposal or (B) that the Company Board reasonably determines (after consultation with the Company’s financial advisors and outside legal counsel), that such Takeover Proposal would reasonably be expected to lead to a Superior Proposal. The Company shall provide to Parent any material nonpublic information regarding the Company provided to the Person making such Takeover Proposal and its Representatives which was not previously provided to Parent, such additional information to be provided promptly (and in any event within twenty-four (24) hours).
(d) The Company shall promptly (and in any event within twenty-four (24) hours and prior to providing any such Person with any material non-public information) orally and in writing notify Parent of the receipt of a Takeover Proposal and in any such notice shall identify the name of the Person making such inquiry, proposal or offer and the material terms and conditions of such inquiry, proposal or offer and include copies of all correspondence and written materials provided to the Company or any of its Representatives by such Person making such Takeover Proposal or any of such Person’s Representatives that describe any material terms and conditions of any inquiry, proposal or offer (and any subsequent changes to such terms and conditions) and written summaries of any oral communications addressing such matters. The Company shall (i) promptly keep Parent reasonably informed of the status and details of any such Takeover Proposal, inquiry, proposal or offer (including any changes to the material terms and conditions thereof), and (ii) promptly upon receipt or delivery thereof, provide Parent with copies of all correspondence and written materials that describe any material terms and conditions, including, where applicable, drafts and final versions of agreements (including schedules and exhibits thereto), and any comments thereon, relating to any Takeover Proposal exchanged between the Company or any Company Representative, whether in his on the one hand, and the Person making such Takeover Proposal or her capacity any of its Representatives, on the other hand.
(e) Except as such permitted by this Section 5.3(e), neither the Company Board nor any committee thereof shall (i) withdraw (or modify or qualify in any other capacitymanner adverse to Parent or Merger Sub), takes or resolve to or publicly propose to withdraw (or modify or qualify in a manner adverse to Parent or Merger Sub), the Company Recommendation or otherwise take any action or make any statement in connection with the transactions contemplated by this Agreement that is inconsistent with the Company Recommendation, (ii) adopt, approve, endorse or recommend, or resolve to or publicly propose to adopt, approve, endorse or recommend, any Takeover Proposal (any of the foregoing actions in clauses (i) and (ii), a “Change in Recommendation”) or (iii) adopt, approve, endorse or recommend, or publicly propose to adopt, approve, endorse or recommend, or allow the Company or any Company Subsidiaries to execute or enter into, any binding or non-binding letter of intent, option, joint venture, partnership or other arrangement or understanding in connection with any Takeover Proposal (other than confidentiality agreements permitted under Section 5.3(c) pursuant to and in accordance with the limitations set forth therein). Notwithstanding the foregoing, the Company Board may prior to the Company Shareholder Approval in response to a Superior Proposal received by the Company after the date of this Agreement and in the absence of any violation of this Section 5.3, make a Change in Recommendation or cause the Company to terminate this Agreement pursuant to Section 7.1(d)(ii) and concurrently with such termination enter into a definitive agreement with respect to such Superior Proposal, subject to satisfaction of its obligations under Section 7.3; provided, however, that the Company is obligated Board shall not be entitled to effect a Change in Recommendation or exercise its right to terminate this Agreement pursuant to Section 7.1(d)(ii) until four (4) full Business Days following delivery of written notice to Parent (a “Section 5.3(e) Notice”) from the Company advising Parent that the Company Board intends to take such action, including a description of the terms and conditions of any 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 Company Board shall not be entitled to exercise such right based on such Superior Proposal, as so amended, until four (4) full Business Days following delivery of written notice to Parent of a Section 5.3(e) 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 Company Board shall take into account any proposals made by Parent to amend the terms of this Agreement, shall cause the Company’s financial advisor and legal counsel to negotiate in good faith with Parent regarding any such proposals and shall not make a Change in Recommendation or terminate this Agreement unless, prior to the effectiveness of such Change in Recommendation or termination, the Company Board, after considering the results of any such negotiations and any revised proposals made by Parent, concludes in good faith (after consultation with a financial advisor of nationally recognized reputation) that the Superior Proposal giving rise to the Section 5.3(e) Notice continues to be a Superior Proposal.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from disclosing to the Company’s shareholders 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; provided, however, that (1) neither the Company Board nor any committee thereof shall take, or agree or resolve to take any action prohibited by Section 5.3(a), Section 5.3(d) or Section 5.3(e), (2) in no event shall this Section 5.3(f) affect the obligations specified in Section 5.3(e) and (3) if 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) does not expressly reaffirm the Company Recommendation, such disclosure shall be deemed a Change of Recommendation. The Company shall provide Parent with a copy of the text of any disclosure proposed to be made pursuant to this Section 6.1 to cause 5.3(f) at the earliest practicable time in advance of such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1disclosure.
Appears in 3 contracts
Sources: Rights Agreement (K Tron International Inc), Merger Agreement (K Tron International Inc), Merger Agreement (Hillenbrand, Inc.)
No Solicitation. From (a) Subject to Section 6.2(c), at all times during the period commencing on the date of this Agreement and after the Agreement Date continuing until the Closing or earlier to occur of the termination of this Agreement pursuant to Article VIIIIX and the Effective Time, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders willshall, nor will any of them shall they authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertain, knowingly encourage, facilitateor knowingly facilitate or assist, support any inquiry, proposal or induce offer, or the making, submission or announcement of any inquiry, expression of interest, proposal or offer offer, that constitutes, constitutes or would reasonably be expected to lead to, to an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available furnish to any Person (other than Parent, Merger Sub or any designees or Representatives of Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Merger Sub or any designees or Representatives of Parent or Merger Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case in connection with, in response to or with the intent to encourage, facilitate or assist the making, submission or announcement of any Acquisition Proposal, (iii) participate or engage in any discussions or negotiations with any Person with respect to any Acquisition Proposal or potential Acquisition Proposal, (iv) adopt, approve or enter into any merger agreement, purchase agreement, letter of intent, memorandum of understanding or similar Contract with respect to an Acquisition Transaction or (v) resolve or agree to do any of the foregoing. Subject to Section 6.2(c), during the period commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Effective Time, the Company and its Subsidiaries shall, and shall cause its and their Representatives to, immediately cease all existing discussions or take negotiations with any Person (other action regardingthan Parent, Merger Sub and their Representatives) conducted prior to the date of this Agreement with respect to any inquiryAcquisition Proposal or potential Acquisition Proposal. Promptly after and within one (1) day of the date of this Agreement, expression the Company will terminate access by any Person (other than Parent, Merger Sub and their Representatives) to any physical or electronic dataroom relating to a potential Acquisition Proposal (or prior discussions in respect of interesta potential Acquisition Proposal) and request that each Person (other than Parent, proposal Merger Sub and their Representatives) that has executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a potential Acquisition Proposal (or offer prior discussions in respect of a potential Acquisition Proposal) promptly return to the Company or destroy all non-public documents and materials containing non-public information of the Company that constituteshas been furnished by the Company or any of its Representatives to such Person pursuant to the terms of such confidentiality agreement.
(b) From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Acceptance Time, as promptly as practicable, and in any event within twenty-four (24) hours following receipt of an Acquisition Proposal or any inquiries, proposals or offers relating to any Acquisition Proposal or that would reasonably be expected to lead to, to an Acquisition Proposal, (iii) agree tothe Company shall provide Parent with written notice thereof, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any which notice shall indicate the identity of the Person making such Acquisition Proposal, inquiry, proposal or offer, and include the material terms and conditions thereof. Thereafter, the Company shall keep Parent reasonably informed on a prompt and timely basis with respect to the status of or material terms and conditions of any such Acquisition Proposal, inquiry, proposal or offer (ivincluding any amendments or proposed amendments to such material terms). The Company shall promptly (and in any event within twenty-four (24) enter into any letter hours following receipt or delivery thereof) provide Parent with copies of intent all written Acquisition Proposals, and all written inquiries, proposals, offers or any other Contract contemplating or otherwise materials (including proposed agreements and proposed financing documents) relating to any Acquisition Proposal, Proposal or (v) submit any that would reasonably be expected to lead to an Acquisition Proposal to that, in each case, are either received by the vote of any shareholders of Company or any Subsidiary. Each of its Representatives from the Person(s) making any such Acquisition Proposal, inquiry, proposal or offer or any of its Representatives, or are delivered by the Company or any of its Representatives to such Person(s) or any of its or their Representatives.
(c) Notwithstanding anything to the contrary set forth in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a written, bona fide Acquisition Proposal from any Person after the date of this Agreement that did not result from a material breach of this Section 6.2, and (ii) the Company Board determines in good faith, after consultation with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and that the failure to take such action described in clause (A), (B) or (C) below would be inconsistent with its fiduciary duties under applicable Law, then the Company may (A) enter into an Acceptable Confidentiality Agreement with such Person, (B) furnish information with respect to the Company and its Subsidiaries will immediately cease to the Person making such Acquisition Proposal and cause its Representatives (provided that (x) the Company shall substantially contemporaneously provide or make available to be terminated Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to such Person and all existing activities, which was not previously provided or made available to Parent and (y) the Company shall have entered into an Acceptable Confidentiality Agreement with such Person and provided Parent a copy of such Acceptable Confidentiality Agreement) and (C) participate and engage in discussions or negotiations with the Person making such Acquisition Proposal and its Representatives regarding such Acquisition Proposal (and waive such Person’s noncompliance with the provisions of any Persons conducted prior “standstill” agreement solely to the extent necessary to permit such discussions or negotiations). Prior to or on concurrently with the Agreement Date Company first taking any of the actions described in clauses (A), (B) or (C) of the immediately preceding sentence with respect to any an Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes provide written notice to Parent of the determination of the Company Board made pursuant to clause (ii) of the immediately preceding sentence.
(d) Without limiting the foregoing, the Company agrees that any violation of the restrictions set forth in this Section 6.2 by any Subsidiary of the Company or any of its or their Representatives shall constitute a breach by the Company of this Agreement to have breached this Section 6.16.2.
Appears in 3 contracts
Sources: Merger Agreement (Johnson & Johnson), Merger Agreement (Abiomed Inc), Merger Agreement (Johnson & Johnson)
No Solicitation. From (a) Immediately upon execution of this Agreement, the Company shall (and shall cause its officers, directors, employees, investment bankers, attorneys and other agents or representatives to) cease all discussions, negotiations, responses to inquiries (except as set forth in the proviso to this sentence) and other communications relating to any potential business combination with all third parties who, prior to the date hereof, may have expressed or otherwise indicated any interest in pursuing an Acquisition Proposal (as hereinafter defined) with the Company; provided that, this Section 5.5(a) shall not prohibit activities permitted by Section 5.5(b) in response to an inquiry initiated after the Agreement Date until the Closing or date hereof.
(b) Prior to termination of this Agreement pursuant to Article VIIIVII hereof, neither the Company and its Subsidiaries shall not, nor shall the Company authorize or permit any officers, directors or employees of, or any investment bankers, attorneys or other agents or representatives retained by or acting on behalf of, the Company or any of its Subsidiaries nor to, (i) initiate, solicit or encourage, directly or indirectly, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, (ii) engage or participate in negotiations or discussions with, or furnish any information or data to, or take any other action to, facilitate any inquiries or making any proposal by, any third party relating to an Acquisition Proposal, (iii) enter into any agreement with respect to any Acquisition Proposal or approve an Acquisition Proposal, or (iv) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Proposal Without limiting the foregoing, the Company understands and agrees that any violation of the restrictions set forth in this Section 5.5(b) by the Company or any of its Subsidiaries, or by any director or officer of the Company Shareholders will, nor will or any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees its Subsidiaries or any investment bankerfinancial advisor, attorney or other advisor or representative retained by of the Company or any of them (all its Subsidiaries, whether or not such person is purporting to act on behalf of the foregoing collectively being the “Company Representatives”or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.5(b) to, directly or indirectly, sufficient to enable Parent to terminate this Agreement pursuant to Section 7.1(d)(i) hereof.
(ic) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as In addition to the existence of these provisions) or negotiations regardingforegoing, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) the Company shall not enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any agreement concerning an Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company unless and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of until this Agreement to have breached this Section 6.1is terminated.
Appears in 3 contracts
Sources: Merger Agreement (Sattel Global Networks Inc), Merger Agreement (Sattel Global Networks Inc), Merger Agreement (Sattel Global Networks Inc)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”a) to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the The Company and its Subsidiaries will shall immediately cease cease, and cause shall direct the Company Representatives to be terminated immediately cease, any and all existing activities, discussions or negotiations with any Persons (other than the parties hereto) conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If , and shall promptly request that any such Person promptly return or destroy all confidential information concerning the Company Representativeand its Subsidiaries furnished in connection with such discussions or negotiations.
(b) Subject to Section 7.1(c) and Section 7.2, whether at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Effective Time, the Company shall not and shall cause its Subsidiaries not to, and shall direct any of their respective directors, officers or other employees, controlled affiliates, or any investment banker, attorney or other advisors or representatives retained by any of them (collectively, the “Company Representatives”) not to directly or indirectly, (i) solicit, initiate, knowingly encourage or assist, or knowingly facilitate or induce the making, submission or announcement of, an Acquisition Proposal or Acquisition Transaction, (ii) participate or engage in his discussions or her capacity as such negotiations with any Person (other than Parent or in Merger Sub or any designees of Parent or Merger Sub) regarding an Acquisition Proposal or Acquisition Transaction, or furnish to any Person (other than Parent or Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford any Person access to the business, properties, assets, books or records of the Company or any of its Subsidiaries, or knowingly take any other capacityaction with the intent to encourage, takes assist or facilitate an Acquisition Proposal or any action inquiries or the making of a proposal that would reasonably be expected to lead to an Acquisition Proposal, (iii) terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person (other than Parent), (iv) enter into any letter of intent, memorandum of understanding, definitive agreement or similar document or Contract relating to any Acquisition Proposal or Acquisition Transaction (other than any confidentiality agreement entered into in accordance with Section 7.1(c) or any definitive agreement with respect to a Superior Proposal entered into in accordance with Section 7.2(c)), (v) waive the applicability of all or any portion of Section 203 of the DGCL in respect of any Person (other than Parent and its Affiliates) in relation to any Acquisition Proposal or Acquisition Transaction (other than in connection with any definitive agreement with respect to a Superior Proposal entered into in accordance with Section 7.2(c)), or (vi) agree to do any of the foregoing.
(c) Notwithstanding anything to the contrary set forth in Sections 7.1(a) and 7.1(b), prior to the Acceptance Time, the Company Board may, directly or indirectly through advisors, agents or other intermediaries, subject to the Company’s compliance with the provisions of this Section 7.1(c), (i) engage or participate in discussions or negotiations with any Person that has made (and not withdrawn) a bona fide, written Acquisition Proposal that the Company is obligated Board concludes in good faith (after consultation with its independent financial advisor and its outside legal counsel) constitutes or would reasonably be expected to lead to a Superior Proposal and (ii) furnish to any Person that has made (and not withdrawn) a bona fide, written Acquisition Proposal that the Company Board concludes in good faith (after consultation with its independent financial advisor and its outside legal counsel) constitutes or would reasonably be expected to lead to a Superior Proposal any non-public information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement (which confidentiality agreement shall not include any provisions that would prevent or restrict the Company or the Company Representatives from providing any information to Parent to which Parent would be entitled under any provision of this Agreement); provided, however, that in the case of any action taken pursuant to the foregoing clauses (i) or (ii), (1) none of the Company or any of its Subsidiaries shall have breached the terms of this Section 6.1 7.1 or Section 7.2 with respect to cause such Acquisition Proposal, (2) the Company Board has determined in good faith (after consultation with outside legal counsel) that such action is required in order to comply with its fiduciary duties to the Company Stockholders under Delaware Law, (3) at least 48 hours prior to taking any of the actions set forth in clauses (i) or (ii), the Company gives Parent written notice containing the information set forth in Section 7.1(d), and of the Company’s intention to take such actions and (4) contemporaneously with furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent (to the extent such information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, Parent, Merger Sub and the Company acknowledge and hereby agree that any breach of the restrictions set forth in this Section 7.1 by any Company Representative not shall constitute a breach of this Section 7.1 by the Company. Notwithstanding anything to takethe contrary set forth in Section 7.1(b), then the Company Board may terminate, amend, waive or fail to enforce any rights under any “standstill” or other similar agreement between the Company or any of its Subsidiaries and any Person if, after consultation with its outside legal counsel, the Company Board determines that the failure to so terminate, amend, waive or fail to enforce such rights would reasonably be expected to result in a breach of the Company Board’s fiduciary duties to the Company Stockholders under Delaware Law.
(d) In addition to the obligations of the Company set forth in Section 7.1(c), the Company shall promptly, and in all cases within 24 hours of its receipt, advise Parent orally and in writing of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be deemed for expected to lead to an Acquisition Proposal or Acquisition Transaction or (iii) any inquiry with respect to, or that would reasonably be expected to lead to, any Acquisition Proposal or Acquisition Transaction, in each case, including the terms and conditions of such Acquisition Proposal or Acquisition Transaction, request or inquiry (unless such Acquisition Proposal is in written form, in which case the Company shall give Parent a copy thereof), and the identity of the Person or group making any such Acquisition Proposal, request or inquiry. The Company shall keep Parent promptly and reasonably informed of the status, details, terms and conditions (including all purposes material amendments or proposed amendments) of this Agreement to have breached this Section 6.1any such Acquisition Proposal, request or inquiry.
Appears in 3 contracts
Sources: Merger Agreement (Nuance Communications, Inc.), Merger Agreement (Nuance Communications, Inc.), Merger Agreement (Transcend Services Inc)
No Solicitation. From Such Stockholder shall not, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them shall not authorize or permit any stockholder, director, officer, employee, affiliate, representative or agent of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) such Stockholder to, directly or indirectly, (i) solicit, facilitate, initiate, seek, entertain, encourage, encourage or take any action to facilitate, support initiate, entertain or induce encourage any inquiries or communications or the making, submission or announcement making of any inquiry, expression of interest, proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, may constitute an Acquisition ProposalProposal or a Transfer of any of the Securities, (ii) enter into, participate in, maintain or continue engage in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingwith, or deliver or make available provide any information to any Person any non-public information with respect to, or take any other action regardingwith the intent to facilitate the efforts of, any inquiry, expression person concerning any possible Acquisition Proposal or a Transfer of interest, proposal any of the Securities or offer that constitutes, any inquiry or would communication which might reasonably be expected to lead to, result in an Acquisition Proposal, Proposal or a Transfer of any of the Securities or (iii) agree to or endorse, or release any third party from any obligation under any existing standstill agreement or arrangement relating to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit otherwise facilitate any effort or attempt to make or implement any Acquisition Proposal. If such Stockholder or any representative or agent of such Stockholder receives an inquiry or proposal with respect to any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each Transfer of Securities, then such Stockholder shall promptly inform Parent of the Company terms and conditions, if any, of such inquiry or proposal and the identity of the person making it. Such Stockholder shall, and shall cause its Subsidiaries will representatives or agents to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons parties conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposalof the foregoing. If Notwithstanding the foregoing, nothing in this Section 3.01(a) shall limit the ability of any individual who is a director or officer of the Company Representative, whether to take any of the actions described in Section 7.8(b) of the Merger Agreement (but only to the extent permitted in Section 7.8(b) of the Merger Agreement) in his or her capacity as such a director or in any other capacity, takes any action that officer of the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1Company.
Appears in 3 contracts
Sources: Tender and Voting Agreement (Symbol Technologies Inc), Tender and Voting Agreement (Symbol Technologies Inc), Tender and Voting Agreement (Symbol Technologies Inc)
No Solicitation. From (a) Except to the extent expressly permitted by this Section 5.4, during the Pre-Closing Period, WWE shall, shall cause its Subsidiaries and after direct its and their Representatives to (i) promptly (and in any case within twenty-four (24) hours) terminate (or cause to be terminated) any discussions or negotiations with any Person and its Affiliates and Representatives that would be prohibited by this Section 5.4, (ii) promptly (and in any case within twelve (12) hours of the Agreement Date until the Closing or termination execution of this Agreement pursuant Agreement) terminate (or cause to Article VIII, neither the Company nor be terminated) such Person’s and its Affiliates’ and Representatives’ access to any data room or other depository of information maintained by or on behalf of WWE and its Subsidiaries nor for purposes of facilitating an Acquisition Proposal and (iii) promptly cease any of the Company Shareholders willdirect or indirect solicitation, nor will knowing encouragement, discussion, or negotiation with any of them authorize or permit any of such Person that may be ongoing relating to an Acquisition Proposal. Additionally, WWE shall not, shall cause its Subsidiaries not to and direct its and their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives not to, directly or indirectly, (iA) solicit, initiate, seek, entertain, encourage, or knowingly facilitate, support or knowingly encourage (including by way of furnishing non-public information), or otherwise propose or knowingly induce the making, submission submission, or announcement of of, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to constitute or lead to, an Acquisition Proposal, (iiB) enter into, participate engage in, maintain continue, or continue otherwise participate in any communications (except solely to provide written notice as to the existence of these provisions) discussion or negotiations negotiation regarding, or deliver or make available furnish to any other Person (other than EDR, its Subsidiaries (including EDR OpCo and HoldCo) or any of its and their designees) any non-public information with respect toand data relating to WWE or any of its Subsidiaries or afford to any Person (other than EDR, its Subsidiaries (including EDR OpCo and HoldCo) or any of its and their designees) access to the business, properties, assets, books, records or other information, or take to any other action regardingpersonnel, of WWE or any inquiryof its Subsidiaries (except pursuant to Section 220 of the DGCL), expression of interestin each case, proposal or offer that constitutesin connection with, or for the purpose of knowingly encouraging or knowingly facilitating, an Acquisition Proposal or any inquires or the making of any proposal that would reasonably be expected to lead to, to an Acquisition Proposal, (iiiC) agree toapprove, accept, approveadopt, endorse or recommend (an Acquisition Proposal or publicly propose any offer or announce any intention or desire proposal that could lead to agree to, accept, approve, endorse or recommend) any an Acquisition Proposal, (ivD) terminate, amend, release, modify or fail to enforce any provision (including any standstill or similar provision) of, or grant any permission, waiver or request under, any confidentiality, standstill or similar agreement, (E) grant any waiver, amendment or release under any Takeover Laws, (F) authorize or enter into any letter of intent intent, acquisition agreement, agreement in principle, or other Contract (an “Acquisition Agreement”) relating to an Acquisition Proposal or (G) resolve, agree or propose to do any of the foregoing; provided, that, if (and only if) prior to WWE’s receipt of the duly executed WWE Written Consent, WWE receives an Acquisition Proposal that did not result from a breach of this Section 5.4(a) and the WWE Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that such Acquisition Proposal is, or could reasonably be expected to result in, a Superior Proposal and a failure to take the actions contemplated by the following clauses (1), (2) or (3) would be inconsistent with the directors’ fiduciary duties under applicable Law, WWE and the WWE Subsidiaries and their respective Representatives may (1) enter into an Acceptable Confidentiality Agreement, (2) engage in discussions or negotiations regarding such Acquisition Proposal (so long as WWE and such person have executed an Acceptable Confidentiality Agreement) and (3) furnish information to, or afford access to the business, properties, assets, books, records or personnel, of WWE or any other Contract contemplating of its Subsidiaries (so long as WWE and such person have executed an Acceptable Confidentiality Agreement), in each case, with the person making or otherwise relating renewing such Acquisition Proposal and its Representatives; provided, however, that any such information or access has previously been made available to any Acquisition ProposalEDR or shall be made available to EDR prior to, or substantially concurrently with, the time such information is made available to such Person.
(vb) submit WWE shall promptly (and, in any event, within 24 hours) after receipt of any Acquisition Proposal to by it or any of its Representatives, notify EDR of the vote material terms of such Acquisition Proposal received by WWE, the Specified Stockholder or any of their respective Affiliates, and the identity of the person or “group” making such Acquisition Proposal and shall provide EDR with copies of any shareholders written requests, proposals or offers, including proposed agreements, and the material terms and conditions of Company any proposals or any Subsidiaryoffers (or where no such copies are available, a reasonably detailed written description thereof). Each In addition, WWE shall, and shall cause its Subsidiaries, the Specified Stockholder and their respective Affiliates to, keep EDR reasonably informed of the Company status and its Subsidiaries will immediately cease terms of, and cause to be terminated material changes in, any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any such Acquisition Proposal. If any Company RepresentativeWWE shall promptly (and, whether in his or her capacity as such or in any other capacityevent, within 24 hours), following a determination by the WWE Board that an Acquisition Proposal is a Superior Proposal to the extent WWE Board is permitted to do so pursuant to Section 5.6, notify Parent of such determination in writing (and, for the avoidance of doubt, following WWE’s receipt of the WWE Written Consent, the WWE Board shall have no right to make such a determination pursuant to Section 5.6 or otherwise).
(c) As soon as reasonably practicable after the date of this Agreement, WWE shall deliver a written notice to each Person that entered into a confidentiality agreement relating to an Acquisition Proposal within the 180 days preceding the date of this Agreement requesting the prompt return or destruction of all confidential information previously furnished to any Person pursuant to such confidentiality agreement within such 180-day period.
(d) Without limiting the foregoing, WWE agrees that if any of its officers, or its or their officers’ direct reports, or its or their directors, or any investment banker or financial advisor retained by, and acting on behalf of WWE, takes (or omits to take) any action that the Company is obligated pursuant to if taken (or not taken) by WWE would constitute a breach of this Section 6.1 to cause such Company Representative not to take5.4, then the Company such action (or inaction) shall be deemed for all purposes to constitute a breach of this Agreement to have breached this Section 6.15.4 by WWE.
Appears in 3 contracts
Sources: Transaction Agreement (New Whale Inc.), Transaction Agreement (Endeavor Group Holdings, Inc.), Transaction Agreement (World Wrestling Entertainmentinc)
No Solicitation. From (a) During the Term, each Shareholder shall not, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIIIit shall cause its subsidiaries, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliatesemployees, shareholders or employees or any counsel, investment bankerbankers, attorney or financial advisers, accountants, other advisor or representative retained by any of them representatives and agents (all of collectively, the foregoing collectively being the “Company "Representatives”") not to, directly or indirectly, (i) solicit, initiate, seek, entertain, or encourage, directly or indirectly (including by way of furnishing information), or take any other action to facilitate, support any inquiries or induce the making, submission or announcement making of any inquiry, expression of interest, proposal or offer that which constitutes, or would may reasonably be expected to lead to, an Acquisition any Takeover Proposal, (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, regarding any Takeover Proposal or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating agreement with respect to any Acquisition Takeover Proposal. Upon execution of this Agreement, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company each Shareholder shall, and it shall cause its Subsidiaries will Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons parties conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If of the foregoing.
(b) Each Shareholder shall promptly advise Parent orally and in writing of any Company Representativerequest for information, whether in his proposal, discussion, negotiation or her capacity as inquiry received by such or Shareholder after the date of this Agreement, and each Shareholder shall promptly (but in any other capacityevent within one Business Day) communicate to Parent the material terms and conditions of any such proposal, takes discussion, negotiation or inquiry which it may receive (and will promptly provide to Parent copies of any action that written materials received by it in connection with such proposal, discussion, negotiation or inquiry) and the identity of the Person making such proposal or inquiry or engaging in such discussion or negotiation. Notwithstanding any provision of this Section 1.8 to the contrary, if any Shareholder or any of its Representatives is a member of the Board of Directors of the Company is obligated pursuant to this Section 6.1 to cause (the "Board of Directors"), such Company Representative not to take, then member of the Company shall be deemed for all purposes Board of this Agreement to have breached this Section 6.1Directors may take actions in such capacity.
Appears in 3 contracts
Sources: Merger Agreement (Software Spectrum Inc), Voting Agreement (Level 3 Communications Inc), Voting Agreement (Software Spectrum Inc)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the (a) The Company nor any of its Subsidiaries nor any of the Company Shareholders willshall not, nor will any of them shall it authorize or permit any of its Subsidiaries or any of its or their respective officersRepresentatives to (and shall use its reasonable best efforts to cause such Persons not to), directorsdirectly or indirectly (i) initiate, affiliatesinduce, shareholders solicit, knowingly facilitate or employees encourage (including by way of furnishing non-public information) any inquiry or the making, submission or announcement of any proposal that constitutes or could reasonably be expected to lead to a Takeover Proposal, (ii) approve, adopt or recommend, or propose to approve, adopt or recommend, any Takeover Proposal or enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding relating to, or that could reasonably be expected to lead to, any Takeover Proposal, (iii) enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the Merger or any investment bankerother transactions contemplated by this Agreement or breach its obligations hereunder, attorney or propose or agree to do any of the foregoing, (iv) fail to enforce, or grant any waiver under, any standstill or similar agreement with any Person or (v) engage in, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information or data with respect to the Company in connection with or in response to, or otherwise cooperate with or take any other advisor action to facilitate any proposal that (A) constitutes, or could reasonably be expected to lead to, any Takeover Proposal or (B) requires the Company to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement. The Company shall, and shall direct each of its Subsidiaries and each agent or representative retained by of any of them (all of the foregoing collectively being to, immediately cease any discussions, negotiations, or communications with any party with respect to any Takeover Proposal. Notwithstanding the foregoing, prior to the receipt of the Company Stockholder Approval and Minority Approval, the Company may, in response to a bona fide written Takeover Proposal that did not result from a breach of this Section 5.08(a), and subject to compliance with Section 5.08(c):
(A) the Company may contact the party that submitted such Takeover Proposal to clarify the terms and conditions thereof;
(B) furnish information or data with respect to the Company or any of its Subsidiaries to the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a confidentiality agreement containing terms and conditions no less restrictive than those contained in the Confidentiality Agreement, provided that (i) such confidentiality agreement shall not contain any provisions that would prevent the Company from complying with its obligation to provide the required disclosure to Parent pursuant to Section 5.08(b), and (ii) all such information provided to such Person has previously been provided to Parent or is provided to Parent prior to or concurrently with the time it is provided to such Person; and
(C) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, in the case of clause (B), that the Special Committee determines in good faith, by resolution duly adopted after consultation with its outside legal counsel and financial advisor of nationally recognized reputation, that such Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Proposal. The Company shall promptly notify Parent (within two Business Days) in writing of any such determination by the Special Committee that such Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Proposal. The Company shall promptly inform its Representatives of the obligations undertaken in this Section 5.08. Without limiting the foregoing, any violation of the restrictions set forth in this Section 5.08 by any Representative of the Company or any of its Subsidiaries, whether or not such Person is purporting to act on behalf of the Company or any of its Subsidiaries, shall be deemed to be a breach of this Section 5.08 by the Company.
(b) As promptly as practicable after the receipt by the Company of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Takeover Proposal, and in any case within two Business Days after the receipt thereof, the Company shall provide oral and written notice to Parent of (i) such Takeover Proposal or inquiry, (ii) the identity of the Person making any such Takeover Proposal or inquiry, and (iii) the material terms (including the price) and conditions of any such Takeover Proposal or inquiry (including any amendments or modifications thereto). The Company shall keep Parent reasonably informed on a current basis of the status of any such Takeover Proposal, including any material changes to the terms and conditions thereof, and promptly (but in any event within two Business Days after the receipt thereof) provide Parent with copies of all written or e-mail correspondence or other communications and other written materials, and summaries of all oral correspondence or other communications, sent or provided to or by the Company and its Representatives in connection with any Takeover Proposal. The Special Committee shall promptly consider in good faith (in consultation with its outside legal counsel and financial advisor of nationally recognized reputation) any proposed alteration of the terms of this Agreement or the Merger proposed by Parent in response to any Takeover Proposal. The Company shall not take any action to exempt any Person from the restrictions on “Company Representatives”business combinations” contained in any applicable Laws or to otherwise cause such restrictions not to apply.
(c) toExcept as permitted by this Section 5.08(c) or Section 5.08(d), neither the Board of Directors nor any committee thereof (including the Special Committee) shall, directly or indirectly, (i) soliciteffect a Change in the Company Recommendation or fail to include the Company Board Recommendation in the Proxy Statement, initiate(ii) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stop, seeklook and listen” communication by the Board of Directors pursuant to Rule 14d-9(f) of the Exchange Act or (iii) approve any letter of intent, entertainmemorandum of understanding, encouragemerger agreement or other agreement, facilitate, support arrangement or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutesunderstanding relating to, or would that may reasonably be expected to lead to, an Acquisition any Takeover Proposal, (ii) enter into, participate in, maintain or continue . At any communications (except solely to provide written notice as time prior to the existence Company Stockholder Approval and Minority Approval having been obtained, but not after, the Special Committee may, in response to a Superior Proposal or an Intervening Event, effect a Change in the Company Recommendation, provided that the Special Committee determines in good faith, by resolution duly adopted after consultation with its outside legal counsel, that the failure to do so would constitute a breach of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal its fiduciary duties to the vote of any shareholders of Company or any Subsidiary. Each stockholders of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activitiesunder applicable Law; provided, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representativefurther, whether in his or her capacity as such or in any other capacity, takes any action that the Special Committee may not effect a Change in the Company is obligated Recommendation pursuant to this Section 6.1 5.08(c) unless the Special Committee shall have first provided prior written notice to cause Parent of its intention to make such Company Representative not to take, then Change in the Company Recommendation, at least three (3) Business Days in advance of taking such action, which notice shall include the reasonable details regarding the cause for, and nature of, the Change in the Company Recommendation.
(d) Nothing contained in this Section 5.08 shall prohibit the Company, the Board of Directors or the Special Committee from (i) complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act in respect of any Takeover Proposal or (ii) making any disclosure to the stockholders of the Company or taking any other action required to comply with applicable Law (including their fiduciary duties thereunder). Any public disclosure by the Company relating to a Takeover Proposal (other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed for all to be a Change in the Company Recommendation unless the Board of Directors expressly publicly reaffirms its approval or recommendation of this Agreement and the Merger in such disclosure, or in the case of a “stop, look and listen” or similar communication, in a subsequent disclosure on or before the earlier of (i) the last day of the ten (10) business day period under Rule 14d-9(f) under the Exchange Act and (ii) two Business Days before the Company Stockholders Meeting.
(e) For purposes of this Agreement to have breached this Section 6.1.Agreement:
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)
No Solicitation. From During the Interim Period, in order to induce the other parties to continue to commit to expend management time and after financial resources in furtherance of the Agreement Date until transactions contemplated hereby, Seller shall not, and shall cause its Representatives to not, without the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any prior written consent of the Company Shareholders willand Purchaser (and, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all upon execution of the foregoing collectively being the “Company Representatives”) toJoinder Agreement, Pubco), directly or indirectly, (i) solicit, initiateassist, seek, entertain, encourage, facilitate, support initiate or induce knowingly facilitate the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutesof, or intentionally encourage, any Acquisition Proposal, (ii) furnish any non-public information regarding the Company or its Affiliates or their respective businesses, operations, assets, liabilities, financial condition, prospects or employees to any person or entity or group (other than a party to this Exchange Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any person or entity or group with respect to, or that would reasonably be expected to lead to, an Acquisition Proposal, (iiiv) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) , or publicly propose to approve, endorse or recommend, any Acquisition Proposal, Proposal or (ivv) negotiate or enter into any letter of intent intent, agreement in principle, acquisition agreement or any other Contract contemplating or otherwise relating similar agreement related to any Acquisition Proposal. For purposes herein, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication of interest in making an offer or proposal, from any person, entity or group at any time relating to an Alternative Transaction, and (vii) submit any Acquisition Proposal to an “Alternative Transaction” means a transaction (other than the vote transactions contemplated by the Business Combination Agreement) concerning the sale of any shareholders (x) all or substantially all of Company the business or any Subsidiary. Each assets of the Company and its Subsidiaries will immediately cease and cause to be terminated subsidiaries, taken as a whole (other than in the ordinary course of business consistent with past practice), or (y) a majority of the voting power or economic interests of the outstanding equity interests of the Company, in any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representativecase, whether in his such transaction takes the form of a sale of shares or her capacity as such other equity interests, assets, merger, amalgamation, consolidation, joint venture or in any other capacitypartnership, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1or otherwise.
Appears in 3 contracts
Sources: Share Exchange Agreement (Tiberius Acquisition Corp), Share Exchange Agreement (Tiberius Acquisition Corp), Share Exchange Agreement (Tiberius Acquisition Corp)
No Solicitation. From and after After the Agreement Date until the Closing or termination execution of this Agreement pursuant and prior to Article VIIIthe Effective Time, neither the Company agrees that neither it nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliatesadvisors, shareholders or employees or any agents, accountants, consultants, employees, investment bankerbankers and legal counsel (collectively, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company "Representatives”") to, shall directly or indirectly, : (i) solicit, initiate, seek, entertain, encourage, facilitate, support knowingly facilitate or induce any inquiry with respect to, or the making, submission or announcement of of, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition ProposalProposal (as defined in Section 6.1(g)(i)), (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public nonpublic information with respect to, or take any other action regarding, to facilitate any inquiry, expression inquiries or the making of interest, any proposal that constitutes or offer that constitutes, or would may reasonably be expected to lead to, an any Acquisition Proposal, (iii) agree toengage in discussions with any Person with respect to any Acquisition Proposal, acceptexcept as to the existence of these provisions, (iv) approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition ProposalProposal (except to the extent specifically permitted pursuant to Section 6.1(e)), or (ivv) enter into any letter of intent or similar document or any other Contract contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiarytransaction contemplated thereby. Each The Company shall immediately terminate, and shall cause each of the Company its Subsidiaries and its Subsidiaries will and their Representatives to immediately cease and cause to be terminated any and terminate, all existing activities, discussions or negotiations negotiations, if any, with any Persons conducted prior third party with respect to, or any that could reasonably be expected to lead to or on contemplate the Agreement Date possibility of, an Acquisition Proposal. The Company shall promptly request that each person which has heretofore executed a confidentiality agreement with the Company or any of its affiliates or Subsidiaries or any of its or their Representatives with respect to any such Person's consideration of a possible Acquisition Proposal. If any Company Representative, whether Proposal to promptly return or destroy (which destruction shall be certified in his or her capacity as writing by such or in any other capacity, takes any action that person to the Company) all confidential information heretofore furnished by the Company is obligated pursuant or any of its affiliates or Subsidiaries or any of its or their Representatives to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes person or any of this Agreement to have breached this Section 6.1its affiliates or Subsidiaries or any of its or their Representatives.
Appears in 3 contracts
Sources: Merger Agreement (Paravant Inc), Merger Agreement (Paravant Inc), Merger Agreement (DRS Technologies Inc)
No Solicitation. From Each of the Company and after Parent agree that, except as expressly permitted by this Section 6.2 from the date of this Agreement Date until to the Closing or Effective Time or, if earlier, the termination of this Agreement pursuant to Article VIIIin accordance with its terms, neither the Company it nor any of its Subsidiaries nor any of the Company Shareholders willshall, nor will any of them authorize or permit any of and each shall cause its respective Subsidiaries and its and their respective officers, directors, affiliatesemployees, shareholders investment bankers, attorneys, accountants and other advisors, agents or employees or any investment bankerrepresentatives (such Persons, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the collectively, “Company Representatives”) not to, directly or indirectly, :
(i) solicit, initiate, seek, entertain, encourage, facilitate, support solicit or induce knowingly encourage or facilitate the making, submission or announcement making of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an any Company Acquisition Proposal, in the case of the Company, or any Parent Acquisition Proposal, in the case of Parent;
(ii) enter into, participate engage in, maintain maintain, continue or continue otherwise participate in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingwith, or deliver furnish or otherwise make available to any Person any material non-public information with respect or data to, any Person other than the other Parties, or any of their Affiliates or any of their respective Representatives (a “Third Party”) that is reasonably likely to be considering or seeking to make, or has made within the 12 months preceding the date of this Agreement, a Company Acquisition Proposal (in the case of the Company) or a Parent Acquisition Proposal (in the case of Parent), in each case relating to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or as would reasonably be expected to lead to, an a Company Acquisition Proposal or a Parent Acquisition Proposal, respectively; or
(iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any agreement in principle, letter of intent intent, term sheet, merger agreement, acquisition agreement, option agreement, memorandum of understanding or any other Contract contemplating or otherwise (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.2(b)) relating to any Acquisition Proposalto, or (v) submit any that would reasonably be expected to lead to, a Company Acquisition Proposal to (in the vote case of the Company) or Parent Acquisition Proposal (in the case of Parent) (any shareholders of Company or any Subsidiary. the foregoing, an “Alternative Acquisition Agreement”).
(iv) Each of the Company and Parent shall, and shall cause its Subsidiaries will and its and their respective Representatives to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations negotiations, if any, with any Persons conducted prior to Third Party or on the Agreement Date its Representatives, with respect to any Company Acquisition Proposal (in the case of the Company) or Parent Acquisition Proposal (in the case of Parent), or any inquiry, proposal or offer that would reasonably be expected to lead to, any Company Acquisition Proposal or Parent Acquisition Proposal. If , as the case may be, and shall promptly request that each Third Party to whom confidential information has been furnished or otherwise made available by or on behalf of such Party or any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that of its Subsidiaries within the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then 12 month period preceding the Company shall be deemed for all purposes date of this Agreement in connection with, or for the purpose of evaluating, a Company Acquisition Proposal or Parent Acquisition Proposal, promptly return or destroy all such confidential information so furnished or otherwise made available. Neither the Company nor Parent shall, and each shall cause its Subsidiaries not to, terminate, waive, amend, release or modify in any respect any standstill or other similar provision of any confidentiality agreement to have breached this Section 6.1which any of them is a party in connection with a Company Acquisition Proposal or Parent Acquisition Proposal, respectively, or other proposal, inquiry or offer that would reasonably be expected to lead to a Company Acquisition Proposal or Parent Acquisition Proposal, and shall use commercially reasonable efforts to enforce the provisions of any such confidentiality agreements, including by seeking injunctions to prevent any known breaches of any such agreements and to enforce specifically the terms and provisions thereof, except in each case if such Party’s board of directors determines in good faith, after consultation with its outside legal counsel, that taking such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Ak Steel Holding Corp)
No Solicitation. From and after (a) During the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIIIInterim Period, neither the Company nor will, and will cause the Company’s Subsidiaries and instruct its Representatives to, immediately cease, and cause to be terminated, any discussion or negotiations with any Person conducted heretofore by the Company or any of its Subsidiaries nor any of or Representatives with respect to a Competing Proposal.
(b) During the Interim Period, the Company Shareholders willwill not, nor and will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of cause the foregoing collectively being the “Company Representatives”) Company’s Subsidiaries and will instruct its Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertain, encourage, facilitate, support solicit or induce knowingly encourage the making, submission or announcement making of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition a Competing Proposal, ; (ii) enter into, participate in, maintain or continue engage in any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to discussions with any Person with respect to a Competing Proposal; (iii) furnish any non-public information with respect toregarding the Company or its Subsidiaries, or take access to the properties, assets or employees of the Company or its Subsidiaries, to any other action regarding, any inquiry, expression of interest, proposal Person in connection with or offer that constitutes, or would reasonably be expected in response to lead to, an Acquisition a Competing Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, ; (iv) enter into any letter of intent or any agreement in principal, or other Contract contemplating or otherwise relating to any Acquisition Proposal, agreement providing for a Competing Proposal (other than a confidentiality agreement entered as provided in Section 6.3(e)(ii)); or (v) submit release or permit the release of any Acquisition Proposal Person from, or amend, waive or permit the amendment or waiver of any provision of, any “standstill” or similar agreement or provision to allow such Person to make or amend a Competing Proposal; provided, however, that notwithstanding anything to the vote of any shareholders of contrary in this Agreement, the Company or any Subsidiary. Each of its Representatives may, (A) in response to an unsolicited inquiry or proposal, seek to clarify the terms and conditions of such inquiry or proposal to determine whether such inquiry or proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and (B) in response to an inquiry or proposal from a third party, inform a third party or its Representative of the restrictions imposed by the provisions of this Section 6.3 (without conveying, requesting or attempting to gather any other information except as otherwise specifically permitted hereunder).
(c) During the Interim Period, the Company and shall advise Parent of the receipt by the Company of any Competing Proposal made on or after the date of this Agreement, any request for non-public information or data relating to the Company or any of its Subsidiaries will immediately cease and cause to be terminated made by any and all existing activities, Person in connection with a Competing Proposal or any request for discussions or negotiations with the Company or a Representative of the Company relating to a Competing Proposal in each case within twenty-four (24) hours thereof, and the Company shall provide to Parent (within such twenty-four (24) hour timeframe) (i) a copy of any Persons conducted such Competing Proposal if made in writing provided to the Company or any of its Subsidiaries or (ii) if any such Competing Proposal is made orally, a written summary of the material financial and other terms of such Competing Proposal. Thereafter the Company shall keep Parent reasonably informed with respect to the status and material terms of any such Competing Proposal and any material changes to the status of any such discussions or negotiations.
(d) Except as permitted by Section 6.3(e), the Company Board, including any committee thereof, agrees it shall not (i) withdraw, qualify or modify, or publicly propose to withdraw, qualify or modify, in a manner adverse to Parent, or fail to affirm without qualification at the request of Parent, the Company Board Recommendation; or (ii) approve, endorse or recommend, or publicly propose or announce any intention to approve, endorse or recommend, any Competing Proposal (the taking of any action described in clauses (i) and (ii) being referred to as a “Company Change of Recommendation”).
(e) Notwithstanding anything in this Agreement to the contrary, the Company, directly or indirectly through one or more of its Representatives, may:
(i) after consultation with its outside legal counsel, make such disclosures as the Company Board or any committee thereof determines in good faith are necessary to comply with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or other disclosure required to be made in the Proxy Statement/Prospectus by applicable U.S. federal securities Laws; provided, however, that neither the Company nor the Company Board shall, except as expressly permitted by Section 6.3(e)(iii) or Section 6.3(f), effect a Company Change of Recommendation including in any disclosure document or communication filed or publicly issued or made in conjunction with the compliance with such requirements;
(ii) prior to the receipt of the Company Stockholder Approval, engage in the activities prohibited by Sections 6.3(b)(i), 6.3(b)(ii) or 6.3(b)(iii) with any Person who has made a written bona fide Competing Proposal that did not result from a breach of this Section 6.3; provided, however, that (A) prior to taking any such actions, the Company Board or any committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Competing Proposal is, or could reasonably be expected to lead to, a Superior Proposal, (B) no non-public information that is prohibited from being furnished pursuant to Section 6.3(b) may be furnished until the Company receives an executed confidentiality agreement from such Person containing limitations on the use and disclosure of non-public information furnished to such Person by or on behalf of the Company that are no less favorable to the Company in the aggregate than the terms of the Confidentiality Agreement, as determined by the Company Board in good faith after consultation with its legal counsel (provided, further, that such confidentiality agreement does not contain provisions that prohibits the Company from complying with the provisions of this Section 6.3), and (C) any such non-public information has previously been made available to, or is made available to, Parent prior to or concurrently with (or in the case of oral non-public information only, promptly (and in any event within twenty-four (24) hours) after) the time such information is made available to such Person;
(iii) prior to the receipt of the Company Stockholder Approval, in response to a Competing Proposal that did not result from a breach of this Section 6.3, if the Company Board (or any committee thereof) so chooses, cause the Company to effect a Company Change of Recommendation or to terminate this Agreement pursuant to Section 8.1(d), if prior to taking such action (A) the Company Board (or a committee thereof) determines in good faith after consultation with its financial advisors and outside legal counsel that such Competing Proposal is a Superior Proposal (taking into account any adjustment to the terms and conditions of the Merger proposed by Parent in response to such Competing Proposal), (B) the Company Board (or a committee thereof) determines in good faith after consultation with its outside legal counsel that the failure to take such action would be inconsistent with its fiduciary obligations to the Company’s stockholders under applicable Law, and (C) the Company shall have given notice to Parent that the Company has received such proposal, specifying the material terms and conditions of such proposal, and, that the Company intends to take such action, and either (1) Parent shall not have proposed revisions to the terms and conditions of this Agreement prior to the earlier to occur of the scheduled time for the Company Stockholders Meeting and the fifth (5th) Business Day after the date on which such notice is given to Parent, or (2) if Parent within the period described in the foregoing clause (1) shall have proposed revisions to the terms and conditions of this Agreement Date in a manner that would form a binding contract if accepted by the Company, the Company Board (or any committee thereof), after consultation with its financial advisors and outside legal counsel, shall have determined in good faith that the Competing Proposal remains a Superior Proposal with respect to Parent’s revised proposal; provided, however, that each time material modifications to the financial terms of a Competing Proposal determined to be a Superior Proposal are made the time period set forth in this clause (C) prior to which the Company may effect a Company Change of Recommendation or terminate this Agreement shall be extended for forty-eight (48) hours after notification of such change to Parent; and
(f) Notwithstanding anything in this Agreement to the contrary, prior to receipt of the Company Stockholder Approval, in response to an Intervening Event, the Company may, if the Company Board (or any Acquisition Proposal. If any committee thereof) so chooses, effect a Company RepresentativeChange of Recommendation if prior to taking such action (i) the Company Board (or a committee thereof) determines in good faith after consultation with its outside legal counsel that the failure to take such action would be inconsistent with its fiduciary obligations to the Company’s stockholders under applicable Law, whether in his or her capacity as such or in any other capacity, takes any action (ii) the Company shall have given notice to Parent that the Company is obligated pursuant to this Section 6.1 to cause has determined that an Intervening Event has occurred or arisen (which notice will reasonably describe such Company Representative not to take, then Intervening Event) and that the Company intends to effect a Company Change of Recommendation, and either (A) Parent shall be deemed for all purposes not have proposed revisions to the terms and conditions of this Agreement prior to the earlier to occur of the scheduled time for the Company Stockholders Meeting and the fifth (5th) Business Day after the date on which such notice is given to Parent, or (B) if Parent within the period described in the foregoing clause (A) shall have breached proposed revisions to the terms and conditions of this Section 6.1Agreement in a manner that would form a binding contract if accepted by the Company, the Company Board (or any committee thereof), after consultation with its outside legal counsel, shall have determined in good faith that such proposed changes do not obviate the need for the Company Board to effect a Company Change of Recommendation and that the failure to make a Company Change of Recommendation would be inconsistent with its fiduciary obligations to the Company’s stockholders under applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (Q Power LLC), Merger Agreement (Stronghold Digital Mining, Inc.), Merger Agreement (Bitfarms LTD)
No Solicitation. From and after (a) During the Agreement Date until the Pre-Closing or termination of this Agreement pursuant to Article VIIIPeriod, neither the Company nor any of its Subsidiaries nor any of and the Company Shareholders willshall not, nor will any of them and shall not authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company the advisory board or any Subsidiary. Each Shareholders or (vi) enter into any other transaction or series of transactions not in the ordinary course of business consistent with past practice, the consummation of which would impede, interfere with, prevent or delay, or would reasonably be expected to impede, interfere with, prevent or delay, the consummation of the Transactions. The Company and its Subsidiaries will the Shareholders shall, and shall cause their Representatives to, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Original Agreement Date with respect to any Acquisition Proposal and (B) immediately revoke or withdraw access of any Person (other than Acquirer and its Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company in connection with an Acquisition Proposal and request from each Person (other than Acquirer and its Representatives) the prompt return or destruction of all non-public information with respect to the Company previously provided to such Person in connection with an Acquisition Proposal. If any Company Representative, whether in his of the Company’s or her capacity as such or in any other capacity, Shareholders’ Agent takes any action that the Company is and the Shareholders are obligated pursuant to this Section 6.1 6.3 not to cause authorize or permit such Company Representative not to take, then the Company or such Shareholder, as the case may be, shall be deemed for all purposes of this Agreement to have breached this Section 6.16.3.
(b) The Company and the Shareholders shall immediately (but in any event, within 24 hours) notify Acquirer orally and in writing after receipt by it (or, to its actual knowledge, by any of its Representatives), of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for non-public information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquirer and its Representatives. Such notice shall describe (A) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (B) the identity of the Person or group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request. The Company and the Shareholders (as the case may be) shall keep Acquirer fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquirer a correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. The Company shall provide Acquirer with 48 hours prior notice (or such lesser prior notice as is provided to the members of the Company’s advisory board) of any meeting of the Company’s advisory board at which the advisory board is reasonably expected to discuss any Acquisition Proposal.
Appears in 2 contracts
Sources: Share Purchase Agreement (Applovin Corp), Share Purchase Agreement (Applovin Corp)
No Solicitation. From 6.10.1. RBPI shall not, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of shall cause its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of and its and their respective officers, directors, affiliatesemployees, shareholders or employees or any investment bankerbankers, attorney or financial advisors, attorneys, accountants, consultants, affiliates and other advisor or representative retained by any of them agents (all of the foregoing collectively being the collectively, “Company Representatives”) not to, directly or indirectly, (ia) initiate, solicit, initiate, seek, entertain, induce or knowingly encourage, facilitateor take any action to facilitate the making of, support or induce the making, submission or announcement of any inquiry, expression of interest, offer or proposal or offer that which constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, ; (iib) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingregarding any Acquisition Proposal or furnish, or deliver or make available otherwise afford access, to any Person (other than BMBC) any non-public information or data with respect to, to RBPI or take any other action regarding, any inquiry, expression of interest, proposal its Subsidiaries or offer that constitutes, or would reasonably be expected otherwise relating to lead to, an Acquisition Proposal; (c) release any Person from, waive any provisions of, or fail to enforce any confidentiality agreement or standstill agreement to which RBPI or any of its Subsidiaries is a party; or (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (ivd) enter into any agreement, agreement in principle or letter of intent or any other Contract contemplating or otherwise relating with respect to any Acquisition Proposal, Proposal or (v) submit approve or resolve to approve any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiaryagreement, agreement in principle or letter of intent relating to an Acquisition Proposal. Each Any violation of the Company foregoing restrictions by RBPI, any RBPI Subsidiary or any Representative, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of RBPI or otherwise, shall be deemed to be a breach of this Agreement by RBPI. RBPI and its Subsidiaries will shall, and shall cause each of Representative to, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or negotiations negotiations, and communications with any Persons conducted prior to or on the Agreement Date with respect to any existing or potential Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
Appears in 2 contracts
Sources: Merger Agreement (Royal Bancshares of Pennsylvania Inc), Merger Agreement (Bryn Mawr Bank Corp)
No Solicitation. From and after Subject to Section 6 hereof, prior to the Agreement Date until Termination Date, the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Shareholder agrees not to, directly or indirectly, (i) solicit, initiate, seeksolicit or knowingly encourage or knowingly facilitate any inquiries or requests for information with respect to, entertainor the making of, encourageany inquiry regarding, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to result in or lead to, any Acquisition Proposal, (ii) engage in, continue or otherwise participate in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information or data to, any Person relating to any proposal, offer, inquiry or request for information that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, (iv) execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, confidentiality agreement, merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement for or relating to any Acquisition Proposal or (v) resolve or agree to do any of the foregoing. The Shareholder also agrees that immediately following the execution of this Agreement the Shareholder shall, and shall use commercially reasonable efforts to cause its Representatives to, cease any solicitations, discussions or negotiations with any Person (other than the Parties and their respective Representatives) conducted heretofore in connection with an Acquisition Proposal or any inquiry or request for information that could reasonably be expected to lead to, or result in, an Acquisition Proposal. Notwithstanding anything in this Agreement to the contrary, (i) the Shareholder shall not be responsible for the actions of the Company or its advisory board (or any committee thereof), any Subsidiary of the Company, or any officers, directors (in their capacity as such), employees and professional advisors of any of the foregoing (the “Company Related Parties”), including with respect to any of the matters contemplated by this Section 5(a), (ii) enter into, participate in, maintain the Shareholder makes no representations or continue any communications (except solely to provide written notice as warranties with respect to the existence actions of these provisions) or negotiations regardingany of the Company Related Parties, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, and (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter breach by the Company of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each its obligations under Section 6.6 of the Company and its Subsidiaries will immediately cease and cause to Business Combination Agreement shall not be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on considered a breach of this Section 5(a) (it being understood for the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action avoidance of doubt that the Shareholder shall remain responsible for any breach by the Shareholder or his, her or its Representatives (other than any such Representative that is a Company is obligated pursuant to Related Party) of this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.15(a)).
Appears in 2 contracts
Sources: Support Agreement (Wiegand Daniel), Business Combination Agreement (Qell Acquisition Corp)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII(a) The Company shall not, neither the Company nor shall it permit any of its Subsidiaries nor any of the Company Shareholders willaffiliates to, nor will any of them shall it authorize or permit any officer, director or employee of their respective officers, directors, affiliates, shareholders or employees or any investment bankerfinancial advisor, attorney or other advisor advisor, consultant, agent or representative retained by of (collectively, the "Representatives"), the Company or any of them (all of the foregoing collectively being the “Company Representatives”) its affiliates to, directly or indirectly, indirectly (iA) solicit, initiate, seekencourage or facilitate the making of, entertain, encourage, facilitate, support or induce take any other action to facilitate any inquiries or the making, submission or announcement making of any inquiry, expression of interest, proposal that constitutes or offer that constitutes, or would may reasonably be expected to lead to, an Acquisition any Takeover Proposal (including by taking any action that would make Section 203 of the DGCL inapplicable to any Takeover Proposal), (iiB) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) way in discussions or negotiations regarding, or deliver furnish or make available disclose to any Person any non-public information with respect toto the Company or any of its Subsidiaries in connection with, or take any other action regardingto cooperate in any way with respect to, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Takeover Proposal, (iiiC) agree towithdraw or modify, acceptor propose to withdraw or modify, approvein a manner adverse to Parent or Sub the approval and recommendation of the Offer, endorse the Merger or recommend this Agreement, (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse D) approve or recommend) , or propose to approve or recommend, any Acquisition Proposal, Takeover Proposal or (ivE) enter into any agreement, letter of intent or any other Contract similar document contemplating or otherwise relating to any Acquisition Takeover Proposal; provided, however, that nothing contained in this Section 5.2(a) shall prohibit the Company or its directors from:
(i) participating in discussions or negotiations with, or furnishing or disclosing nonpublic information to (subject to Section 5.2(b) below), any Person in response to an unsolicited, bona fide and written Takeover Proposal that is submitted to the Company by such Person after the date of this Agreement and prior to the Acceptance Date if (A) none of the Company, any of its affiliates or any of the Representatives shall have violated any of the provisions of this Section 5.2, (B) a majority of the members of the Board of Directors of the Company determines in good faith, after having consulted with the Company Financial Advisor or other independent nationally recognized financial advisor (x) that such Person is reasonably capable of consummating such Takeover Proposal taking into account the legal, financial, regulatory and other aspects of such Takeover Proposal and (y) that such Takeover Proposal is reasonably likely to lead to a Superior Proposal, (C) a majority of the members of the Board of Directors of the Company determines in good faith, after having taken into account the advice of its outside legal counsel, that failing to take such action is reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, as such duties would exist in the absence of this Section 5.2, (D) at least two business days prior to furnishing or disclosing any nonpublic information to such Person, the Company furnishes such information to Parent (to the extent such information has not been previously delivered or made available by the Company to Parent), and (E) all action of the Board of Directors of the Company is taken in accordance with the DGCL and applicable Delaware law; or
(ii) approving or recommending, or entering into (and in connection therewith, withdrawing or modifying the approval and recommendation of the Offer, the Merger and this Agreement), a definitive agreement with respect to an unsolicited, bona fide and written Takeover Proposal that is submitted to the Company after the date of this Agreement and prior to the Acceptance Date if (A) none of the Company, any of its affiliates or any of the Representatives have violated any of the provisions of this Section 5.2, (B) the Company provides Parent with written notice at least four business days prior to any meeting of the Board of Directors of the Company at which such Board of Directors will consider whether such Takeover Proposal constitutes a Superior Proposal, during which four-business day period the Company shall cause the Company Financial Advisor (or another independent nationally recognized financial advisor) and its legal advisors to negotiate in good faith with Parent and its advisors in an effort to make such adjustments in the terms and conditions of this Agreement as would enable the Company to proceed with the transactions contemplated herein on such adjusted terms, (C) notwithstanding having complied with its obligations pursuant to clause (B) above, the Board of Directors of the Company after having consulted with the Company Financial Advisor or other independent nationally recognized financial advisor, makes the determination that such Takeover Proposal constitutes a Superior Proposal, (D) a majority of the members of the Board of Directors of the Company determines in good faith, after having taken into account the advice of its outside legal counsel, that failing to take such action is reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, (E) all action of the Board of Directors of the Company is taken in accordance with the DGCL and applicable Delaware law, (F) the Company does not approve or recommend or enter into a definitive agreement with respect to such Takeover Proposal at any time before the day that is the fourth business day after Parent receives written notice from the Company stating that the Board of Directors of the Company has determined such Takeover Proposal constitutes a Superior Proposal and fulfills its obligations under (B) above and (G) simultaneously with the earlier of the (1) withdrawal or modification in any manner adverse to Parent or Sub of the approval and recommendation of the Offer, the Merger or this Agreement or (2) the approval or recommendation of, or execution of a definitive agreement with respect to, any such Superior Proposal, the Company makes the payments to the Parent required to be made pursuant to Section 8.2(b); or
(iii) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender offer or exchange offer in accordance with the foregoing; or
(iv) upon an unsolicited request, referring a third party to this Section 5.2(a) or making a copy of this Section 5.2(a) available to any third party.
(b) In addition to the obligations of the Company set forth in Section 5.2(a), on the date of receipt thereof, the Company shall advise Parent of any request for information or of any Takeover Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activitiesinquiry, proposal, discussions or negotiations with any Persons conducted prior to or on the Agreement Date negotiation with respect to any Acquisition Takeover Proposal. If any Company Representative, whether in his the terms and conditions of such request, Takeover Proposal, inquiry, proposal, discussion or her capacity as such or in any other capacitynegotiation, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then and the Company shall promptly provide to Parent copies of any written materials received by the Company in connection with any of the foregoing and the identity of the Person making any such Takeover Proposal or such request, inquiry or proposal or with whom any discussions or negotiations are taking place. Prior to furnishing nonpublic information to, or entering into discussions or negotiations with, any other Person, the Company shall enter into a customary confidentiality agreement with such Person (if the Company has not already entered into a customary confidentiality agreement with such Person), it being understood that such confidentiality agreement (i) 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 hereunder and (ii) shall be deemed for no less favorable to the Company than the Company's confidentiality agreement with the Parent, dated May 4, 2004. The Company shall keep Parent informed of the status and general progress (including amendments or proposed amendments) of any such request or Takeover Proposal and keep Parent informed as to the details of any information requested of or provided by the Company and as to the details of all purposes discussions or negotiations. The Company shall promptly provide to Parent any nonpublic information the Company provided to any other Person in connection with any Takeover Proposal that was not previously provided to Parent, such information to be provided no later than the date of this Agreement provision of such information to have breached such other party.
(c) Nothing contained in this Section 6.15.2 shall prohibit Sub from purchasing the Shares pursuant to the Offer or consummating the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Ebro Puleva Partners G.P.), Merger Agreement (Riviana Foods Inc /De/)
No Solicitation. From and after (a) During the Agreement Date until the Pre-Closing or termination of this Agreement pursuant to Article VIIIPeriod, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders willshall not, nor will any of them authorize and shall not authorize, encourage or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition ProposalProposal (as hereinafter defined), (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders securityholders of Company or (vi) enter into any Subsidiary. Each other transaction or series of transactions not in the ordinary course of the Company’s business, the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Integrated Merger. The Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement Date with respect to any Acquisition Proposal. If any Company RepresentativeRepresentative of the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 5.4 not to cause authorize, encourage or permit such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.15.4.
Appears in 2 contracts
No Solicitation. From and after (a) During the Agreement Date until the Pre-Closing or termination of this Agreement pursuant to Article VIIIPeriod, neither the Company nor any of its Subsidiaries nor any of will not, and the Company Shareholders will, nor will any of them not authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) its Representatives to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders Company Stockholders or (vi) enter into any other transaction or series of Company transactions not in the ordinary course of business consistent with past practice, the consummation of which would impede, interfere with, prevent or any Subsidiary. Each delay, or would reasonably be expected to impede, interfere with, prevent or delay, the consummation of the Merger or the Transactions. The Company will, and will cause its Subsidiaries will Representatives to, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal and (B) immediately revoke or withdraw access of any Person (other than Acquirer and its Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company in connection with an Acquisition Proposal. If any Company Representativeof the Company’s Representatives, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 4.11 not to cause authorize or permit such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.14.11.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Versus Systems Inc.), Merger Agreement (Versus Systems Inc.)
No Solicitation. From Each Stockholder shall, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any shall cause its Affiliates and each of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of and their respective Affiliates, officers, directors, affiliatesemployees, shareholders representatives, consultants, investment bankers, attorneys, accountants and other agents (collectively, a person's or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company entity's "Representatives”") to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions activities or negotiations with any other Person or Persons conducted prior to or on the Agreement Date (a "Third Party Acquiror") that may be ongoing with respect to any Acquisition Proposal. If any Company RepresentativeDuring the term of this Agreement, whether in his or her capacity as such or in any other capacityno Stockholder shall take, takes any action that the Company is obligated pursuant to this Section 6.1 to and each Stockholder shall cause such Company Representative its Representatives not to take, then any action that, if taken by the Company shall be deemed Company, would violate Paragraph 6.4(b) of the Merger Agreement. Each Stockholder will as promptly as practicable (and in any event within 24 hours) advise the Parent of any request for all information received by that Stockholder with respect to any Acquisition Proposal or of any Acquisition Proposal received by that Stockholder, or any inquiry or proposal received by that Stockholder with respect to any Acquisition Proposal, and the material terms and conditions of such request, Acquisition Proposal, inquiry or proposal. For purposes of this Agreement Agreement, each of Parent and Sub are not deemed to have breached be Affiliates of the Stockholders. Without limiting the foregoing, the Parent, Sub and each of the Stockholders agree that any violation of the restrictions set forth in this Section 6.14 by any Representative of a Stockholder or any of its Affiliates, whether or not such Person is purporting to act on behalf of a Stockholder or any of its Affiliates, shall constitute a breach by such Stockholder of this Section 4 if, following that violation and while this Agreement is in effect, the Stockholder enters into discussions with the Person from whom the Representative encouraged, solicited, initiated or facilitated an Acquisition Proposal in violation of this Section 4.
Appears in 2 contracts
Sources: Voting Agreement (Mfa Limited Partnership), Voting Agreement (LNR Property Corp)
No Solicitation. (a) From and after the Agreement Date until the Closing or termination date of this Agreement pursuant to Article VIIIuntil the Effective Time, neither except as specifically permitted in Section 5.5(d), the Company agrees that neither it nor any of its Subsidiaries nor any of the Company Shareholders willofficers or directors of it or its Subsidiaries shall, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) and that it shall cause its and its Subsidiaries’ Representatives not to, directly or indirectly, :
(i) solicit, initiate, seeksolicit or encourage (including by way of providing information) or facilitate any inquiries, entertainproposals or offers with respect to, encourage, facilitate, support or induce the making, submission or announcement of any inquirythe completion of, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition a Takeover Proposal, ;
(ii) enter into, participate in, maintain or continue engage in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingwith, or deliver furnish or make available to any Person disclose any non-public information with respect relating to the Company or any of its Subsidiaries to, or take otherwise cooperate with or assist any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Person in connection with a Takeover Proposal, ;
(iii) agree towithdraw, accept, modify or amend the Company Board Recommendation in any manner adverse to Parent or Merger Sub;
(iv) approve, endorse or recommend any Takeover Proposal;
(or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (ivv) enter into any letter of intent intent, agreement in principle, merger agreement, acquisition agreement, option agreement or any other Contract contemplating or otherwise similar agreement relating to a Takeover Proposal; or
(vi) resolve, propose or agree to do any Acquisition Proposalof the foregoing (provided, however, that providing notice of the restrictions set forth in this Section 5.5 to a third party in response to any such inquiry, request or (v) submit any Acquisition Proposal to the vote shall not, in and of any shareholders itself, be deemed a breach of this Section 5.5(a)).
(b) The Company or any Subsidiary. Each shall, and shall cause each of the Company and its Subsidiaries will and Representatives to, immediately cease and cause to be terminated any and all existing activitiessolicitations, discussions or negotiations with any Persons conducted Person (other than the parties hereto) that has made or indicated an intention to make a Takeover Proposal. The Company shall promptly request that each Person who has executed a confidentiality agreement with the Company in connection with such Person’s consideration of a Takeover Proposal (other than the parties hereto and their respective advisors) return or destroy all non-public information furnished to that Person by or on behalf of the Company. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.5.
(c) The Company shall notify Parent promptly (and in any event within 24 hours) upon receipt by it or its Subsidiaries or Representatives of (i) any Takeover Proposal or indication by any Person that it is considering making a Takeover Proposal, (ii) any request for non-public information relating to the Company or any of its Subsidiaries other than requests for information in the ordinary course of business and unrelated to a Takeover Proposal or (iii) any inquiry or request for discussions or negotiations regarding any Takeover Proposal. The Company shall notify Parent promptly (and in any event within 24 hours) with the identity of such Person and a copy of such Takeover Proposal, indication, inquiry or request (or, where no such copy is available, a description of such Takeover Proposal, indication, inquiry or request), including any modifications thereto. The Company shall keep Parent reasonably informed on a current basis (and in any event within 24 hours of the occurrence of any changes, developments, discussions or negotiations) of the status of any such Takeover Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. 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 negotiations concerning a Takeover Proposal pursuant to Section 5.5(d). The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement, and neither the Company nor any of its Subsidiaries is party to any agreement, which prohibits the Company from providing such information to Parent. The Company shall not, and shall cause each of its Subsidiaries not to, terminate, waive, amend or modify any provision of any existing standstill or confidentiality agreement to which it or any of its Subsidiaries is a party, and the Company shall, and shall cause its Subsidiaries to, enforce the provisions of any such agreement.
(d) Notwithstanding the foregoing, the Company shall be permitted, if it has otherwise complied with its obligations under this Section 5.5, but only prior to satisfaction of the condition set forth in Section 6.1(a) herein, to:
(i) engage in discussions or on negotiations with a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.5 if, prior to taking such action, (A) the Company enters into an Acceptable Confidentiality Agreement Date with such Person and (B) the Company Board determines in good faith (1) after receiving the advice of its financial advisors that such Takeover Proposal constitutes, or is reasonably likely to result in, a Superior Proposal and (2) after receiving the advice of its outside legal counsel that failing to take such action would create a reasonable likelihood of a breach by the Company Board of its fiduciary obligations to the stockholders of the Company under applicable Laws;
(ii) furnish or disclose any non-public information relating to the Company or any of its Subsidiaries to a Person who has made a written Takeover Proposal not solicited in violation of this Section 5.5 if, prior to taking such action, the Company Board determines in good faith (A) after receiving the advice of its financial advisors that such Takeover Proposal constitutes, or is reasonably likely to result in, a Superior Proposal and (B) after receiving the advice of its outside legal counsel that failing to take such action would create a reasonable likelihood of a breach by the Company Board of its fiduciary obligations to the stockholders of the Company under applicable Laws, but only so long as the Company (x) has caused such Person to enter into an Acceptable Confidentiality Agreement and (y) concurrently discloses the same such non-public information to Parent if such non-public information has not previously been disclosed to Parent; and
(iii) in connection with a Takeover Proposal that is or becomes a Superior Proposal, withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent or Merger Sub, if the Company Board has determined in good faith, after receiving the advice of outside legal counsel that failing to take such action would create a reasonable likelihood of a breach by the Company Board of its fiduciary obligations to the stockholders of the Company under applicable Laws, provided that prior to any such withdrawal, modification or amendment to the Company Board Recommendation, (A) the Company shall have given Parent prompt written notice advising Parent of (x) the decision of the Company Board to take such action and the reason for taking such action and (y) the material terms and conditions of the Takeover Proposal, including the identity of the party making such Takeover Proposal and, if available, a copy of the relevant proposed transaction agreements with such party and other material documents, (B) the Company shall have given Parent three Business Days after delivery of each such notice to propose revisions to the terms of this Agreement (or make another proposal) and shall have negotiated in good faith with Parent with respect to any Acquisition Proposal. If any Company Representativesuch proposed revisions or other proposal, whether in his or her capacity as such or in any other capacityif any, takes any action that and (C) the Company is obligated Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent, if any, and after receiving the advice of outside legal counsel that failure to make such withdrawal, modification or amendment of the Company Board Recommendation would create a reasonable likelihood of a breach by the Company Board of its fiduciary obligations to the stockholders of the Company under applicable Laws, provided further that, in the event the Company Board does not make the determination referred to in clause (C) of this paragraph but thereafter determines to withdraw, modify or amend the Company Board Recommendation pursuant to this Section 6.1 5.5(d)(iii), the procedures referred to cause such Company Representative in clauses (A), (B) and (C) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or modification.
(e) Section 5.5(d) shall not to take, then 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 (other than any disclosure prohibited by Section 5.5(d)); provided, however, that any disclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall be deemed for all purposes to be a withdrawal, modification or amendment of the Company Board Recommendation in a manner adverse to Parent or Merger Sub unless the Company Board (x) expressly reaffirms the Company Board Recommendation to the Company’s stockholders in favor of adoption of this Agreement or (y) rejects such other Takeover Proposal.
(f) The Company shall not take any action to have breached exempt any Person from the restrictions on “business combinations”, “control share acquisitions”, “takeover offers” or similar provisions contained in the DGCL, including Section 203 (or any similar provisions), or otherwise cause such restrictions not to apply unless such actions are taken simultaneously with a termination of this Section 6.1Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Jarden Corp), Merger Agreement (K2 Inc)
No Solicitation. From (a) GLB shall not, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of shall cause its Subsidiaries nor any of and the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliatesemployees, shareholders or employees or any investment bankerbankers, attorney or financial advisors, attorneys, accountants, consultants, affiliates and other advisor or representative retained by any of them agents (all of the foregoing collectively being collectively, the “Company Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate, seek, entertain, induce or knowingly encourage, facilitateor take any action to facilitate the making of, support or induce the making, submission or announcement of any inquiry, expression of interest, offer or proposal or offer that which constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, ; (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingregarding any Acquisition Proposal or furnish, or deliver or make available otherwise afford access, to any Person (other than FNFG) any non-public information or data with respect to, to GLB or take any other action regarding, any inquiry, expression of interest, proposal its Subsidiaries or offer that constitutes, or would reasonably be expected otherwise relating to lead to, an Acquisition Proposal, ; (iii) agree torelease any Person from, acceptwaive any provisions of, approve, endorse or recommend (fail to enforce any confidentiality agreement or publicly propose standstill agreement to which GLB is a party; or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any agreement, agreement in principle or letter of intent or any other Contract contemplating or otherwise relating with respect to any Acquisition Proposal, Proposal or (v) submit approve or resolve to approve any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiaryagreement, agreement in principle or letter of intent relating to an Acquisition Proposal. Each Any violation of the Company foregoing restrictions by GLB or any Representative, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of GLB or otherwise, shall be deemed to be a breach of this Agreement by GLB. GLB and its Subsidiaries will shall, and shall cause each of GLB Representative to, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or negotiations negotiations, and communications with any Persons conducted prior to or on the Agreement Date with respect to any existing or potential Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
Appears in 2 contracts
Sources: Merger Agreement (Great Lakes Bancorp, Inc.), Merger Agreement (First Niagara Financial Group Inc)
No Solicitation. Subject to Section 6(a) hereof, Shareholder shall immediately cease, and shall cause the Liberty Controlled Affiliates and its and their respective Representatives acting at the direction of Shareholder or such Liberty Controlled Affiliates to immediately cease, any discussions or negotiations with any third-party that may be ongoing with respect to a Competing Proposal (for purposes of this Agreement, excluding any Transfer permitted by Section 1(b) above), or any proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly any confidential information that has been provided since January 2015 in any such discussions or negotiations. From and after the Agreement Date date hereof until the Closing earlier of the Effective Time or the date of termination of this Agreement pursuant to Article VIIIin accordance with its terms, neither Shareholder shall not, and shall cause the Company nor any of Liberty Controlled Affiliates and its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of and their respective officers, directors, affiliates, shareholders Representatives acting at the direction of Shareholder or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) such Liberty Controlled Affiliates not to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support initiate or induce the making, submission knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated) any Competing Proposal or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or which would reasonably be expected to lead to, an Acquisition to a Competing Proposal, (ii) engage in any discussions or negotiations regarding any Competing Proposal or (iii) approve, endorse, recommend or enter into, participate inor publicly propose to approve, maintain endorse, recommend or continue enter into, any communications (except solely to provide written notice as to the existence letter of these provisions) intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or negotiations regarding, or deliver or make available similar definitive agreement with respect to any Competing Proposal. Shareholder shall promptly, and in any event no later than 24 hours, after it receives (x) any Competing Proposal or indication by any Person that it is considering making a Competing Proposal, (y) any request for non-public information relating to the Company or its Subsidiaries other than requests for information in the ordinary course of business consistent with respect to, past practice and unrelated to a Competing Proposal or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommendz) any Acquisition Proposal, (iv) enter into any letter of intent inquiry or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, request for discussions or negotiations with regarding any Persons conducted prior Competing Proposal, notify the Company 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. For the avoidance of doubt, notwithstanding anything to the contrary in this Section 1(c), this Section 1(c) shall not prohibit any discussions, negotiations, or on the Agreement Date with respect Transfers related to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated permitted Transfers pursuant to Section 1(b), and any Transfer permitted under Section 1(b) will not constitute a breach of this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.11(c).
Appears in 2 contracts
Sources: Voting and Support Agreement (Interval Leisure Group, Inc.), Voting and Support Agreement (Liberty Interactive Corp)
No Solicitation. From and after The Company agrees that none of the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIIICompany, neither the Company nor any of its Subsidiaries nor or any of the Company Shareholders will, nor will Company’s or any of them authorize or permit any of their respective officersits Subsidiaries’ officers and directors shall, directorsand that it shall use all reasonable efforts to cause the Company’s and its Subsidiaries’ other employees, affiliates, shareholders or employees or agents and representatives (including any investment banker, attorney or other advisor or representative accountant retained by the Company or any of its Subsidiaries) not to (and shall not authorize or permit any of them (all of the foregoing collectively being the “Company Representatives”) to), directly or indirectly, : (i) solicit, initiate, seek, entertain, encourage, facilitateknowingly induce any inquiry with respect to, support or induce the making, submission or announcement of of, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue engage in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public nonpublic information with respect to, or take any other action regarding, that is intended to facilitate or encourage any inquiry, expression inquiries concerning or the making of interest, any proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, an any Acquisition Proposal, (iii) agree to, accept, approve, endorse endorse, recommend or recommend make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal (except to the extent specifically permitted pursuant to Section 5.3(d)), or (iv) execute or enter into, or publicly propose to execute or announce any intention or desire to agree toenter into, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or similar document or any other Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal, Proposal or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiarytransaction contemplated thereby. Each of the The Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations (including, without limitation, any such activities, discussions or negotiations conducted by affiliates, directors, officers, employees, agents and representatives (including any investment banker, financial advisor, attorney, accountant or other representative) of the Company or any of its Subsidiaries) with any Persons third parties conducted prior to or on the Agreement Date heretofore with respect to consideration of any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
Appears in 2 contracts
Sources: Merger Agreement (Sun Microsystems, Inc.), Merger Agreement (Seebeyond Technology Corp)
No Solicitation. From (a) United will not, and after will cause the Agreement Date until the Closing United Subsidiaries and each officer or termination director of this Agreement pursuant United or any United Subsidiary not to, and will use its reasonable best efforts to Article VIIIcause each controlled Affiliate and any employee, neither the Company nor agent, consultant or representative (including any financial or legal advisor or other representative) of its Subsidiaries nor United, any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees United Subsidiaries or any investment bankersuch controlled Affiliate not to, attorney or other advisor or representative retained by and on becoming aware of it will use its best efforts to stop any of them (all of the foregoing collectively being the “Company Representatives”) such Person from continuing to, directly or indirectly, (i) solicit, initiate or knowingly encourage or facilitate (including by way of furnishing information) or take any other action designed to facilitate any inquiries or proposals regarding, or that would reasonably be expected to lead to, any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer or exchange offer) or similar transactions involving United or any of the United Subsidiaries that, if consummated, would constitute a Competing Transaction (any of the foregoing inquiries or proposals being referred to herein as a “United Acquisition Proposal”), (ii) solicit, initiate, seekknowingly encourage or participate in any discussions or negotiations regarding, entertainor furnish to any Person any information in connection with, encourageor otherwise cooperate in any way with, facilitateor knowingly facilitate in any way any effort by, support any Person in connection with, any United Acquisition Proposal, or induce the making(iii) enter into any letter of intent, submission memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or announcement of any inquiryother agreement regarding, expression of interest, proposal or offer that constitutesis intended to result in, or would reasonably be expected to lead to, an any United Acquisition Proposal (a “United Acquisition Agreement”).
(b) Continental will not, and will cause the Continental Subsidiaries and each officer or director of Continental or any Continental Subsidiary not to, and will use its reasonable best efforts to cause each controlled Affiliate and any employee, agent, consultant or representative (including any financial or legal advisor or other representative) of Continental, any of the Continental Subsidiaries or any such controlled Affiliate not to, and on becoming aware of it will use its best efforts to stop any such Person from continuing to, directly or indirectly, (i) solicit, initiate or knowingly encourage or facilitate (including by way of furnishing information) or take any other action designed to facilitate any inquiries or proposals regarding, or that would reasonably be expected to lead to, any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer or exchange offer) or similar transactions involving Continental or any of the Continental Subsidiaries that, if consummated, would constitute a Competing Transaction (any of the foregoing inquiries or proposals being referred to herein as a “Continental Acquisition Proposal” and, together with any United Acquisition Proposal, each an “Acquisition Proposal”), (ii) enter intosolicit, initiate, knowingly encourage or participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public information with respect toin connection with, or take otherwise cooperate in any way with, or knowingly facilitate in any way any effort by, any Person in connection with, any Continental Acquisition Proposal, or (iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other action agreement regarding, any inquiry, expression of interest, proposal or offer that constitutesis intended to result in, or would reasonably be expected to lead to, an any Continental Acquisition ProposalProposal (a “Continental Acquisition Agreement”).
(c) As used in this Agreement, “Competing Transaction” means, with respect to United or Continental, as the case may be (for this purpose, the “Target Party”), any of (i) a transaction, including any tender offer, exchange offer or share exchange, pursuant to which any third Person (or group) other than the other party to this Agreement (the “Non-Target Party”) or such third Person’s Affiliates, or the stockholders of such third Person, directly or indirectly, acquires or would acquire beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of 10% or more of the outstanding shares of common stock of the Target Party or of the outstanding voting power of the Target Party (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such common stock or other securities representing such voting power), whether from the Target Party or pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, share exchange, consolidation or business combination pursuant to which any third Person or group of Persons (other than the Non-Target Party or its Affiliates) party thereto, or the stockholders of such third Person or Persons, beneficially owns or would beneficially own 10% or more of the outstanding shares of common stock or the outstanding voting power of the Target Party, or, if applicable, any surviving entity or the parent entity resulting from any such transaction, immediately upon consummation thereof, (iii) agree toa recapitalization of Target Party or any of its Subsidiaries or any transaction similar to a transaction referred to in clause (ii) above involving the Target Party or any of its Subsidiaries pursuant to which any third Person or group of Persons (other than the Non-Target Party or its Affiliates) party thereto, acceptor its stockholders, approvebeneficially owns or would beneficially own 10% or more of the outstanding shares of common stock or the outstanding voting power of the Target Party or such Subsidiary or, endorse if applicable, the parent entity resulting from any such transaction immediately upon consummation thereof or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter transaction pursuant to which any third Person or group of intent Persons (other than the Non-Target Party or its Affiliates) directly or indirectly (including by way of merger, consolidation, share exchange, other business combination, partnership, joint venture or otherwise) acquires or would acquire control of assets (including for this purpose the equity securities of, or other ownership interest in, Subsidiaries of the Target Party and securities of the entity surviving any merger or business combination involving any of the Subsidiaries of the Target Party) of the Target Party or any other Contract contemplating of its Subsidiaries representing 10% or otherwise relating more of consolidated revenues, net income, EBITDAR for the last 12 full calendar months or the fair market value of all the assets of the Target Party and its Subsidiaries, taken as a whole, immediately prior to such transaction; provided, however, that no transaction involving solely the acquisition of capital stock or assets of any Acquisition ProposalUnited Subsidiary by United, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries Continental Subsidiary by Continental, will immediately cease and cause be deemed to be terminated any and all existing activitiesa Competing Transaction. Wherever the term “group” is used in this Agreement, discussions or negotiations with any Persons conducted prior to or on it used as defined in Rule 13d-3 under the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Continental Airlines Inc /De/)
No Solicitation. From (a) The Company shall not, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them shall not authorize or permit any of their respective its Subsidiaries to, directly or indirectly, and shall cause its and each of its Subsidiaries’ officers, directors, affiliatesemployees, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) advisors and agents not to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support initiate or induce the making, submission or announcement of encourage any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Company Acquisition Proposal, (ii) enter into, participate in, maintain provide any information or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available data to any Person relating to or in connection with or in response to a Company Acquisition Proposal or an inquiry or indication of interest that could lead to a Company Acquisition Proposal, engage in any non-public information with respect todiscussions or negotiations concerning a Company Acquisition Proposal, or otherwise take any other action regarding, to facilitate any inquiry, expression of interest, proposal effort or offer that constitutes, attempt to make or would reasonably be expected to lead to, an implement a Company Acquisition Proposal, (iii) approve, recommend, agree to, to or accept, or propose publicly to approve, endorse recommend, agree to or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Company Acquisition Proposal, or (viv) submit approve, recommend, agree to or accept, or propose to approve, recommend, agree to or accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Company Acquisition Proposal to Proposal. Without limiting the vote foregoing, any violation of the restrictions set forth in the preceding sentence by any shareholders of the Company’s Subsidiaries or any of the Company’s or the Company Subsidiaries’ officers, directors, employees, agents or representatives (including any investment banker, attorney or accountant retained by the Company or any Subsidiarythe Company’s Subsidiaries) shall be a breach of this Section 4.2(a) by the Company. Each of the The Company and its Subsidiaries agrees that it will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than Parent and its affiliates) conducted prior to or on the Agreement Date heretofore with respect to any Company Acquisition Proposal. If any .
(b) Nothing contained in Section 4.2(a) shall prevent the Company Representativeor the Company Board from, whether in his or her capacity as such or prior to the adoption of this Agreement by the holders of Company Common Stock, engaging in any other capacitydiscussions or negotiations with, takes or providing any information to, any Person, if and only to the extent that (i) the Company receives from such Person a Company Acquisition Proposal (which is not withdrawn), which was not solicited in violation of Section 4.2(a); (ii) the Company complies with Section 4.2(d); (iii) at least two Business Days prior to commencing discussions or providing any information or data to such Person, the Company provides Parent with written notice advising Parent that the Board of Directors of Company has received a Company Acquisition Proposal; (iv) following such two Business Days and prior to commencing discussions or providing information to such Person, the Company Board concludes in good faith (after taking into account the advice of outside legal and financial advisors) that (A) such action is required by Law to comply with the Board’s fiduciary duties, and (B) such a Company Acquisition Proposal would reasonably be expected to result in a Company Superior Proposal; (v) following such two Business Days and prior to providing any information or data to such Person, the Company Board receives from such Person an executed confidentiality agreement containing terms no less restrictive on such Person than the terms contained in the Confidentiality Agreement at the time the Company and Parent entered into such Confidentiality Agreement; and (vi) the Company provides Parent with written notice advising Parent that the Company is obligated Board has determined that such Company Acquisition Proposal would reasonably be expected to result in a Company Superior Proposal. Any action pursuant to this Section 6.1 4.2(b) shall not constitute a breach of the Company’s representations, warranties, covenants or agreements contained in this Agreement.
(c) Nothing in this Agreement shall prohibit the Company from taking and disclosing to cause its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company’s shareholders if the Company Board (after taking into account the advice of outside legal advisors), concludes that its failure to do so would be inconsistent with its fiduciary duties to the Company’s shareholders under applicable Law.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Company Acquisition Proposal, any inquiry or indication of interest that could lead to a Company Acquisition Proposal or any request for information) advise Parent orally and in writing of any Company Acquisition Proposal, any inquiry or indication of interest that could lead to a Company Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries (including the identity of the Person making or submitting such Company Representative Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the period prior to Closing. The Company shall keep Parent fully informed with respect to the status of any such Company Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) The Company agrees not to takerelease or permit the release of any Person from, then or waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company shall or any of its Subsidiaries is a party, and will use its commercially reasonable efforts to enforce or cause to be deemed for all purposes enforced each such agreement at the request of Parent. The Company also will, promptly after signing this Agreement, request each Person (other than Parent) that has executed, within 12 months prior to the date of this Agreement Agreement, a confidentiality agreement in connection with its consideration of a possible acquisition of the Company or equity investment to have breached this Section 6.1return all confidential information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Rent Way Inc), Merger Agreement (Rent a Center Inc De)
No Solicitation. From and after The Company agrees that none of the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIIICompany, neither the Company nor any of its Subsidiaries nor or any of the Company Shareholders will, nor will Company’s or any of them authorize its Subsidiaries’ employees, officers or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative accountant retained by the Company or any of its Subsidiaries, shall, and that it shall use all reasonable efforts to cause the Company’s and its Affiliates, Subsidiaries’ other Employees/Service Providers, agents and representatives not to (and shall not authorize or permit any of them (all of the foregoing collectively being the “Company Representatives”) to), directly or indirectly, : (i) solicit, initiate, seek, entertain, encourage, facilitate, support knowingly facilitate or induce any inquiry with respect to, or the making, submission or announcement of of, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, ; (ii) enter into, participate in, maintain or continue engage in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public nonpublic information with respect to, or take any other action regarding, to facilitate or encourage any inquiry, expression inquiries or the making of interest, any proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, an any Acquisition Proposal, ; (iii) agree to, accept, approve, endorse endorse, recommend or recommend (make or publicly propose authorize any statement, recommendation or announce any intention or desire to agree to, accept, approve, endorse or recommend) solicitation in support of any Acquisition Proposal, ; (iv) withdraw, amend or modify in a manner adverse to Parent, or propose to withdraw, amend or modify in a manner adverse to Parent its recommendation in favor of the adoption of the Agreement by the stockholders of the Company; (v) fail to reaffirm its recommendation in favor of the adoption of the Agreement by the stockholders of the Company within three Business Days of a written request to do so by Parent or (vi) execute or enter into into, or propose to execute or enter into, any letter of intent or similar document or any other Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition ProposalProposal or transaction contemplated thereby, or except in the case of clauses (ii), (iii), (iv), (v) submit any Acquisition Proposal or (vi) to the vote of any shareholders of Company extent specifically permitted pursuant to Sections 7.3(c) or any Subsidiary7.3(d). Each of the The Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations (including, without limitation, any such activities, discussions or negotiations conducted by Affiliates, directors, officers, employees, agents and representatives (including any investment banker, financial advisor, attorney, accountant or other representative) of the Company or any of its Subsidiaries) with any Persons third parties conducted prior to or on the Agreement Date heretofore with respect to consideration of any Acquisition Proposal. If The Company will exercise any Company Representative, whether in his rights under any confidentiality or her capacity as non-disclosure agreements with any such third parties to require the return or in any other capacity, takes any action that destruction of non-public information provided prior to the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes date of this Agreement by the Company, its Subsidiaries or their agents and representatives to have breached this Section 6.1any such third parties.
Appears in 2 contracts
Sources: Merger Agreement (Excel Technology Inc), Merger Agreement (Gsi Group Inc)
No Solicitation. From and after the date of this Agreement Date until the Closing or Effective Time, or, if earlier, the termination of this Agreement pursuant to Article VIIIin accordance with Section 9.01, neither the Company nor any of shall not, and shall cause its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of Affiliates and its and their respective directors, officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) and Representatives not to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support knowingly facilitate or induce knowingly encourage the making, submission or announcement of any inquiryinquiries, expression of interest, proposal proposals or offer offers that constitutes, constitute or would reasonably be expected to lead to, an Acquisition to any Takeover Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information concerning the Company or any of its Subsidiaries to any person or group (or any Representative thereof, in its capacity as such) who would reasonably be expected to make, any Takeover Proposal, (iii) engage in any discussions or negotiations with respect to, or take any other action regarding, to any inquiry, expression of interest, proposal or offer that constitutes, constitutes or would reasonably be expected to lead toto a Takeover Proposal or (iv) approve, an Acquisition Proposalsupport, (iii) agree to, accept, approveadopt, endorse or recommend (any Takeover Proposal or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition ProposalAgreement relating thereto, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit otherwise cooperate with or assist or participate in, or knowingly facilitate, any Acquisition Proposal such inquiries, proposals, offers, discussions or negotiations or (vi) resolve or agree to the vote of do any shareholders of Company or any Subsidiary. Each of the foregoing; provided, however, that ministerial acts, such as answering unsolicited phone calls, shall not be deemed to “facilitate” for purposes of, or otherwise to constitute a breach of, this Section 6.02(a). Subject to Section 6.02(c), the Company shall, and shall cause its Affiliates and its Subsidiaries will and their respective Representatives to, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons person or group conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Takeover Proposal. If , or any Company Representativeinquiry or proposal that would reasonably be expected to lead to a Takeover Proposal, whether in his (B) immediately terminate access by any Third Party to any physical or her capacity as such electronic data room relating to any Takeover Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Takeover Proposal and (C) promptly, and in any other capacityevent within two (2) days following the date of this Agreement, takes request the prompt return or destruction of any action non-public information provided to any Third Party within the twelve (12) months immediately preceding the date of this Agreement in connection with any Takeover Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Takeover Proposal to the extent that the Company is obligated pursuant entitled to have such documents returned or destroyed. Any violations of the restrictions set forth in this Section 6.1 to cause such Company 6.02 by any Representative not to take, then of the Company or any of its Subsidiaries shall be deemed for all purposes to be a breach of this Agreement to have breached this Section 6.16.02 by the Company.
Appears in 2 contracts
Sources: Merger Agreement (Smith & Nephew PLC), Merger Agreement (Osiris Therapeutics, Inc.)
No Solicitation. From (i) Subject to Section 7(a)(ii), prior to the Termination Date, the Stockholder shall not, and after the Agreement Date until the Closing or termination of this Agreement pursuant shall cause its controlled Affiliates and Subsidiaries not to Article VIII, neither the Company nor any of and shall use its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of reasonable best efforts to cause its and their respective officersRepresentatives acting on their respective behalf, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) not to, directly or indirectly, : (iA) solicit, initiate, seeksolicit or knowingly encourage or knowingly facilitate any inquiries or requests for information with respect to, entertainor the making of, encourageany inquiry regarding, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to result in or lead to, an any Acquisition Proposal, Proposal with respect to Parent; (iiB) enter into, participate engage in, maintain continue or continue otherwise participate in any communications (except solely to provide written notice as to the existence of these provisions) negotiations or negotiations regardingdiscussions concerning, or deliver provide access to its properties, books and records or make available any confidential information or data to, any Person relating to any Person any non-public proposal, offer, inquiry or request for information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to result in or lead to, an any Acquisition Proposal, Proposal with respect to Parent; (iiiC) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) , or propose publicly to approve, endorse or recommend, any Acquisition ProposalProposal with respect to Parent; (D) execute or enter into, (iv) enter into any letter of intent intent, memorandum of understanding, agreement in principle, confidentiality agreement, merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or any other Contract contemplating similar agreement for or otherwise relating to any Acquisition Proposal, Proposal with respect to Parent; or (vE) submit resolve or agree to do any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company foregoing. The Stockholder agrees that immediately following the execution of this Agreement it shall, and shall cause each of its controlled Affiliates and Subsidiaries will immediately and shall use its reasonable best efforts to cause its and their Representatives acting on its or their respective behalf to, cease and cause to be terminated any and all existing activitiessolicitations, discussions or negotiations with any Person (other than the Company and its Representatives) conducted heretofore in connection with an Acquisition Proposal with respect to Parent or any inquiry or request for information that would reasonably be expected to lead to, or result in, an Acquisition Proposal with respect to Parent. The Stockholder shall promptly (and in any event within two Business Days) notify, in writing, the Company of the receipt by the Stockholder in such capacity of any inquiry, proposal, offer or request for information received after the date hereof that constitutes, or would reasonably be expected to result in or lead to, any Acquisition Proposal with respect to Parent, which notice shall include the identity of the Person or group of Persons conducted prior to making, such inquiry, proposal, offer or on the Agreement Date request for information and, with respect to any Acquisition Proposal. If such proposal or offer, a summary of the material terms of, and an unredacted copy of any Company Representativeproposed definitive agreement, whether proposal or offer made in his writing or, if not in writing, a written description of the material terms and conditions of such proposal or her capacity as such or in offer (and shall include any other capacitymaterial documents evidencing or specifying the terms of such proposal or offer or, takes any action that to the extent applicable, inquiry). To the extent the Stockholder is prohibited by a non-disclosure or confidentiality agreement entered into prior to the date hereof from providing the information set forth in the preceding sentence, the Stockholder shall not be required to provide the Company is obligated pursuant to this Section 6.1 to cause with the identity of the Person(s) from which such Company Representative expression of interest, inquiry or proposal was received. The Stockholder shall not to take, then enter into any confidentiality agreement with any Person after the Company shall be deemed for all purposes date of this Agreement to have breached that prohibits it from complying with the foregoing obligations. Nothing in this Section 6.17(a) shall prohibit Stockholder or its Representatives from informing any Person of the existence of the provisions contained in this Section 7(a).
(ii) Notwithstanding anything in this Agreement to the contrary, the Stockholder shall be entitled to review any Acquisition Proposal with respect to Parent, received by Parent after the date hereof that did not result from a breach of Section 5.04 of the Merger Agreement and shared with the Stockholder, and, solely to the extent the Parent Board has made the determinations set forth in Section 5.04(c) of the Merger Agreement, to discuss and confirm with Parent the willingness of the Stockholder to support, or lack thereof, such Acquisition Proposal in the event the Merger Agreement is terminated.
Appears in 2 contracts
Sources: Parent Support Agreement (Talos Energy Inc.), Parent Support Agreement (Talos Energy Inc.)
No Solicitation. (a) From and after the date of this Agreement Date until the Closing earlier of the time the Company Stockholder Approval is obtained or the termination of this Agreement pursuant to Article VIIIAgreement, neither the Company nor shall immediately cease and cause to be terminated all existing discussions, negotiations and communications, if any, with any Persons with respect to any Acquisition Proposal and shall request that any such Person (and its agents and advisors) in possession of its confidential information about the Company and the Company Subsidiaries that was furnished by or on behalf of the Company to return or destroy all such information. The Company agrees that neither it nor any of the Company Shareholders willSubsidiaries shall, nor will any of them authorize or permit any of their and that it shall direct the Company’s and the Company Subsidiaries’ respective officers, directors, affiliatesemployees, shareholders or employees or agents and representatives, including any investment banker, consultant, attorney or other advisor or representative accountant retained by the Company or any of them Company Subsidiary (all of the foregoing collectively being the “Company collectively, "Representatives”") not to, directly or indirectly, indirectly (i) solicit, initiate, seeksolicit or knowingly encourage (including by way of furnishing information or assistance), entertainor knowingly induce, encourageor take any action that is designed to or could reasonably be expected to facilitate the making of, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, offer or proposal which constitutes or offer that constitutes, or would could reasonably be expected to lead to, an to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingwith, or deliver or make available to any Person furnish any non-public information with respect relating to the Company or any of the Company Subsidiaries to, or take otherwise cooperate in any way with any Person (other action regarding, than Parent or any inquiry, expression of interest, proposal its affiliates or offer representatives) that constitutesis seeking to make, or would reasonably be expected to lead tohas made, an Acquisition Proposal, (iii) agree tofail to make, acceptor withdraw or modify in any manner adverse to Parent, the Company Board Recommendation, or recommend, adopt or approve, endorse or recommend (or publicly propose to recommend, adopt or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition ProposalProposal (any of the foregoing in this clause (iii), an "Adverse Recommendation Change"), (iv) except as required by applicable Law, grant (other than to Parent or any of its affiliates or representatives) any waiver or release under any standstill or similar agreement, or (v) enter into any letter of intent or similar document or any other Contract understanding or agreement contemplating or otherwise relating to, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal. The Company shall promptly (and in any event within twenty-four hours) notify Parent if (1) any proposals are received by the Company or (2) any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, the Company or any Representative which could reasonably be expected to result in an Acquisition Proposal, which notice shall identify the name of the Person making such proposal or request or seeking such negotiations or discussions and include copies of all correspondence and written materials provided to the Company, any Company Subsidiary or any Representative that describe the terms and conditions of any proposal or request (and any subsequent changes to such terms and conditions) and summaries of any material oral communications addressing such matters. The Company shall promptly inform Parent of any material changes to any Acquisition Proposal.
(b) Notwithstanding Section 5.2(a) or any other provision of this Agreement, following the execution of this Agreement but prior to the time the Company Stockholder Approval is obtained (and in no event after the Company Stockholder Approval is obtained), the Company may, subject to compliance with this Section 5.2, furnish information concerning its and the Company Subsidiaries’ respective businesses, properties or assets to any Person pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement, dated April 15, 2008, entered into between Parent and the Company (vthe "Confidentiality Agreement") submit any (a copy of which shall be provided to Parent promptly after its execution) and may negotiate and participate in discussions and negotiations (including making counterproposals) with such Person concerning an Acquisition Proposal if, but only if, (x) such Acquisition Proposal provides for consideration to be received by holders of all, but not less than all, of the vote issued and outstanding Shares and is reasonably likely to be consummated promptly; (y) such Person has on an unsolicited basis, and in the absence of any shareholders violation of this Section 5.2 by the Company or any Subsidiary. Each of its Representatives, submitted a bona fide, written proposal to the Company relating to any such transaction which the Board of Directors determines in good faith, after receiving advice from a nationally recognized investment banking firm, is, or would reasonably be likely to be, more favorable to the holders of Shares from a financial point of view than the Merger or, if applicable, any proposal by Parent to amend the terms of this Agreement, taking into account all the terms and conditions of such proposal and this Agreement (including the expected timing and likelihood of consummation, and taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal) and which is not conditioned upon obtaining financing or any regulatory approvals beyond or in addition to the types of regulatory approvals required in connection with the transactions contemplated by this Agreement, and (z) in the good faith belief of the Company and its Subsidiaries will immediately cease and cause Board of Directors, after consultation with outside legal counsel to be terminated any and all existing activitiesthe Company, the failure to provide such information or access or to engage in such discussions or negotiations would be reasonably likely to cause the Company Board of Directors’ to violate its fiduciary duties to the Company's stockholders under applicable Law (an Acquisition Proposal which satisfies clauses (x), (y) and (z) being referred to herein as a "Superior Proposal"). The Company shall promptly, and in any event within twenty-four hours, notify Parent of a Company Board of Directors determination that an Acquisition Proposal is or would reasonably be likely to lead to a Superior Proposal, which notice shall include the name of the Person making such Superior Proposal and copies of all correspondence and written materials provided to the Company or any Representative that describes any terms and conditions of any Superior Proposal (and any subsequent changes to such terms and conditions) and summaries of any material oral communications addressing such matters. The Company shall promptly provide to Parent any material non-public information regarding the Company or any Company Subsidiary provided to any other Person which was not previously provided to Parent, such additional information to be provided no later than the date of provision of such information to such other Person.
(c) Any violation of this Section 5.2 by any of its Representatives, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding the foregoing, it is understood and agreed for purposes of this Agreement that, so long as no actions inconsistent with the Company’s obligations under this Section 5.2 are taken by the Company, its Company Subsidiaries, or their Representatives after the date this Agreement is executed, an Acquisition Proposal shall not be considered to have been solicited as a result of any actions taken prior to the date of this Agreement. In addition, nothing in this Section 5.2 shall prohibit the Company’s outside legal counsel from contacting or otherwise engaging in discussions with any Persons conducted prior Person after the date hereof who has submitted an unsolicited Acquisition Proposal that did not otherwise result from a breach of this Section 5.2 solely for the purpose of clarifying such Acquisition Proposal and any material terms and the conditions thereof so as to assist the Company Board of Directors in determining whether such Acquisition Proposal is or on would reasonably be likely to lead to a Superior Proposal.
(d) Prior to the Agreement Date time the Company Stockholder Approval is obtained (and in no event after the Company Stockholder Approval is obtained), neither the Company Board of Directors nor any committee thereof shall (i) make an Adverse Recommendation Change or (ii) authorize the Company to enter into any agreement with respect to any Superior Proposal (an "Acquisition Proposal. If any Company RepresentativeAgreement"), whether in his or her capacity as such or in any other capacity, takes any action that unless and until the Company is obligated shall have delivered to Parent the written notice required by Section 5.2(e) below and all rights of the Parent to propose adjustments to the terms and conditions of this Agreement as set forth in said Section 5.2(e) shall have expired. Any such Adverse Recommendation Change or the entry by the Company into any Acquisition Agreement shall not change the approval of the Company Board of Directors for purposes of causing any state takeover statute or other state Law to be applicable to the Merger, this Agreement and the transactions contemplated hereby.
(e) The Company Board of Directors may make an Adverse Recommendation Change and authorize the Company to terminate this Agreement if (i) the Company first provides Parent with written notice that it intends to do so pursuant to this Section 6.1 5.2(e), identifying the Superior Proposal then determined to cause be more favorable and the parties thereto and delivering to Parent a copy of the Acquisition Agreement for such Superior Proposal in the form to be entered into and (ii) within a period of five full Business Days following the delivery of the notice referred to in clause (i) above, Parent shall not have proposed adjustments in the terms and conditions of this Agreement which, after having caused its financial and legal advisors to negotiate with Parent in good faith such proposed adjustments in the terms and conditions of this Agreement, the Company Representative not Board of Directors determines in its good faith judgment (after considering the advice of its financial advisor) to takebe as favorable to the Company's stockholders as such Superior Proposal. If the conditions of the immediately preceding sentence are satisfied in all respects, then the Company shall be deemed for all purposes free to deliver to the Parent, pursuant to this Section 5.2(e) and Section 8.1(d)(i), at least five full Business Days after the Company has provided the notice referred to in clause (i) above, (A) a written notice of termination of this Agreement pursuant to have breached this Section 6.15.2(e) and Section 8.1(d)(i) and (B) within the time specified in Section 8.2(b), a wire transfer of immediately available funds in the amount of the Termination Fee (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 written notice to Parent pursuant to clause (i) above and a new five Business Day period).
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from taking and disclosing to its stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making such disclosure to the Company’s stockholders which, in the good faith judgment of the Company Board of Directors, after consultation with outside counsel to the Company, is required by applicable Law or the failure to take such action would cause the Company Board of Directors to violate its fiduciary duties to the Company's stockholders under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Turbochef Technologies Inc), Merger Agreement (Middleby Corp)
No Solicitation. From and after the Agreement Date until the Closing (a) The Company shall not, nor shall it permit or termination of this Agreement pursuant to Article VIII, neither the Company nor authorize any of its Subsidiaries nor or any officer, director, employee, accountant, counsel, financial advisor, agent or other representative of the Company Shareholders will, nor will or any of them authorize or permit any of their respective officersits Subsidiaries (collectively, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seekfacilitate, entertain, respond to or encourage, facilitateincluding by way of furnishing non-public information, support any inquiries regarding or induce relating to, or the makingsubmission of, submission any Takeover Proposal, (ii) participate in any discussions or announcement negotiations, furnish to any Person any information or data relating to the Company or its Subsidiaries, provide access to any of the properties, books, records or employees of the Company or its Subsidiaries or take any other action, in each such case regarding or to facilitate the making of any inquiry, expression of interest, proposal or offer that constitutes, or would may reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Takeover Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or any other Contract contemplating similar agreement or otherwise relating commitment with respect to any Takeover Proposal (an “Alternative Acquisition Agreement”) or agree to, approve, endorse or resolve to recommend or approve any Takeover Proposal, except in each case as otherwise specifically provided in Section 7.2(c), (iv) grant any waiver or release under any standstill or similar agreement by any Person who has made a Takeover Proposal, or (v) submit take any Acquisition Proposal action (A) to render the Rights issued pursuant to the vote of any shareholders of Company or any Subsidiary. Each terms of the Company Rights Agreement inapplicable to a Takeover Proposal or the transactions contemplated thereby, exempt or exclude any Person from the definition of an Acquiring Person (as defined in the Company Rights Agreement) under the terms of the Company Rights Agreement or, other than as contemplated by this Agreement in connection with the Merger, allow the Rights to expire prior to their expiration date or (B) to exempt any Person from the restrictions on “business combinations” contained in Section 203 of Delaware Law or otherwise cause such restrictions not to apply; provided, however, that nothing contained in this Section 7.2(a) or any other provision hereof shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company’s stockholders a position required by Rules 14d-9 and 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (B) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company Board, after consultation with its outside counsel, is required under applicable Law, including in order to comply with its fiduciary duties or (C) notifying any Person solely of the existence of and restrictions under the provisions of this Section 7.2, provided that the Company may not, except as permitted by Section 7.2(b) or (c), withdraw or modify, or propose to the public or any Third Party (other than the Company’s agents and representatives) to withdraw or modify, its approval or recommendation of this Agreement or the transactions contemplated hereby, including the Merger, or approve or recommend, or propose to the public or any Third Party (other than the Company’s agents and representatives) to approve or recommend any Takeover Proposal, or enter into any Alternative Acquisition Agreement. Upon execution of this Agreement, the Company shall, and it shall cause the Company Representatives and its Subsidiaries will to, immediately cease and cause to be terminated any and all existing activities, discussions discussions, solicitations or negotiations with any Persons parties conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Takeover Proposal. If Notwithstanding any of the foregoing restrictions appearing in this Section 7.2(a), nothing in this Agreement shall prevent the Company Representativeor the Company Board from furnishing (or causing to be furnished), whether prior to, but not after, the time the vote is taken with respect to the approval of the Company Voting Proposal at the Company Meeting, information concerning its business, properties or assets, or other information with respect to the Company or its Subsidiaries, which information is not of greater scope, area or detail than was provided to Parent, to any Person or group pursuant to a confidentiality agreement with terms and conditions substantially similar to those of the Confidentiality Agreement, and may negotiate and participate in his discussions and negotiations with such Person or her capacity as group who has made a bona fide, written Takeover Proposal, but only if: (w) such Takeover Proposal was made after the date of this Agreement (it being understood that such a Takeover Proposal made after the date of this Agreement by a Person who has made a Takeover Proposal prior to the date of this Agreement shall be considered a new Takeover Proposal made after the date of this Agreement) and none of the Company, its Subsidiaries and their representatives has solicited, initiated, or knowingly facilitated or encouraged any Takeover Proposal, or otherwise directly or indirectly violated this Section 7.2 (other than immaterial breaches that have not (1) directly or indirectly resulted in any other capacity, takes any action the making of such Takeover Proposal or (2) otherwise had an adverse impact on Parent’s rights under this Section 7.2) with respect to such Person making such Takeover Proposal or its Affiliates; (x) such Person or group has submitted a Takeover Proposal that the Company Board has determined (after consulting with outside legal counsel) either (i) constitutes a Superior Proposal (as defined below) or (ii) is obligated pursuant more favorable to this Section 6.1 the Company’s stockholders from a financial point of view than the Merger and is reasonably likely to cause lead to a Superior Proposal; and (y) the Company Board determines in good faith, after consultation with outside counsel, that such action is required to discharge the Company Representative Board’s fiduciary duties to the Company’s stockholders under applicable Law. The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of, any confidentiality, standstill or similar agreement to takewhich the Company is a party or under which the Company has any rights. The Company will promptly (and in any event within one (1) Business Day) notify Parent telephonically and in writing of the existence of any proposal, then discussion, negotiation or inquiry received by the Company that is or could reasonably be expected to constitute a Takeover Proposal, and the Company will promptly communicate in writing to Parent the terms and conditions of any such proposal, discussion, negotiation or inquiry which it may receive and a copy thereof and the identity of the Person making the same. The Company shall inform Parent within 24 hours of any change to the material terms of any such Takeover Proposal. Within 24 hours upon any determination by the Company Board that a Takeover Proposal constitutes a Superior Proposal, the Company shall be deemed for all deliver to Parent a written notice advising it of such determination, specifying the terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal, and providing Parent with a copy of the Superior Proposal.
(b) Neither the Company Board nor any committee thereof shall withdraw or modify, or propose to the public or any Third Party (other than the Company’s agents and representatives) to withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, unless the Company Board shall have determined in good faith, after consultation with outside counsel, that such action is required to discharge the Company Board’s fiduciary duties to the Company’s stockholders under Delaware Law or to otherwise comply with any other applicable Law.
(c) Neither the Company Board nor any committee thereof shall (i) approve or recommend, or propose to the public or any Third Party (other than the Company’s agents and representatives) to approve or recommend, any Takeover Proposal or (ii) enter into any Alternative Acquisition Agreement (other than a confidentiality agreement in accordance with Section 7.2(a)). Notwithstanding the foregoing, prior to, but not after, the time the vote is taken with respect to the adoption of this Agreement at the Company Meeting, the Company Board may make a change in the Company Board Recommendation in a manner adverse to Parent or Merger Sub (a “Change in Company Recommendation”) and/or approve or recommend a Superior Proposal, and, in connection with such Superior Proposal, make any approvals, consents or actions to exempt such Takeover Proposal from any Takeover Statute and the Company Rights Agreement, and the Company may enter into an Alternative Acquisition Agreement with respect to a Superior Proposal in connection with the termination of this Agreement, in each case if (A) the Company shall have received a Superior Proposal which is pending at the time the Company determines to take such action, (B) the Company Board shall have determined in good faith, after consultation with outside counsel, that such action is required to discharge the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law and (C) at least three (3) Business Days shall have passed following Parent’s receipt of written notice from the Company (the “Adverse Recommendation Notice”) advising Parent that the Company Board has received such a Superior Proposal which it intends to accept or recommend or advising Parent that it intends to make a Change in Company Recommendation, specifying the material terms and conditions of such Superior Proposal and the other information required by Section 7.2(a) (it being understood and agreed that any material amendment to the financial terms or other material terms of such Superior Proposal shall require a new Adverse Recommendation Notice and a new three (3) Business Day period), and Parent does not make an offer within such three (3) Business Day period that the Company Board shall have concluded in its good faith judgment, after consultation with its financial advisors and outside counsel, is at least as favorable to the Company’s stockholders as such Superior Proposal (it being agreed that the Company Board shall convene a meeting to consider any such offer by Parent promptly following the receipt thereof and that the Company Board will not withhold, withdraw or modify its recommendation to the Company’s stockholders in favor of the Company Voting Proposal until the earlier of the receipt of Parent’s revised offer or three (3) Business Days after receipt by Parent of the Adverse Recommendation Notice).
(d) For purposes of this Agreement to have breached this Section 6.1.Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Symbol Technologies Inc), Merger Agreement (Motorola Inc)
No Solicitation. (a) From and after the Agreement Date date hereof until the Closing Effective Time or the termination of this Agreement pursuant to Article VIIIin accordance with Section 8.1, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor subsidiaries will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, indirectly initiate, seek, entertain, encourage, facilitate, support solicit or induce the making, submission or announcement encourage (including by way of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any furnishing non-public information with respect toor assistance), or take any other action regardingto facilitate, any inquiryinquiries or the making or submission of any Acquisition Proposal (as defined herein) or enter into or maintain or continue discussions or negotiate with any person or group in furtherance of such inquiries or to obtain or induce any person or group to make or submit an Acquisition Proposal or agree to or endorse any Acquisition Proposal or assist or participate in, expression facilitate or encourage, any effort or attempt by any other person or group to do or seek any of interestthe foregoing or authorize or permit any of its officers, proposal directors or offer employees or any of its subsidiaries or affiliates or any investment banker, financial advisor, attorney, accountant or other representative or agent retained by it or any of its subsidiaries to take any such action; provided, however, that constitutesnothing contained in this Agreement shall prohibit the Company or the Board of Directors of the Company from, prior to the earlier to occur of acceptance for payment of shares of Company Common Stock pursuant to the Offer or adoption of this Agreement by the requisite vote of the shareholders of the Company, furnishing information to or entering into discussions or negotiations with any person or entity that makes an unsolicited (i.e. not solicited after the date of this Agreement) written, bona fide Acquisition Proposal that the Board of Directors of the Company determines reasonably and in good faith constitutes or presents a reasonable likelihood of resulting in a Superior Proposal (as defined herein), if, and only to the extent that prior to taking such action (other than the negotiation of the confidentiality agreement referred to in the following clause (y) prior to the disclosure of any Company information) the Company (x) delivers to Parent and Purchaser the notice required pursuant to Section 6.1(c) stating that it is taking such action and (y) receives from such person or group an executed confidentiality agreement that is not, in any material respect, less restrictive as to such person or entity than the Confidentiality Agreement and which, in any event, contains customary confidentiality and standstill restrictions and shall not contain any exclusivity provisions which would prohibit the Company from complying with its obligations under this Section 6.1 or otherwise under this Agreement. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 6.1 by any officer, director, employee or affiliate of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor, agent or representative of the Company or any of its subsidiaries, whether or not such person is purporting to act on behalf of the Company or any of its subsidiaries or otherwise, shall be deemed to be a breach of this Section 6.1 by the Company.
(b) Neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw, modify in a manner adverse to Parent or Purchaser or fail to make, or would reasonably be expected propose to lead towithdraw, an modify in a manner adverse to Parent or Purchaser or fail to make its approval or recommendation of the Offer or the Merger or of the Tender and Option Agreement, this Agreement and the other Transactions, (ii) except as permitted by Section 6.1(e), approve or recommend, or propose to approve or recommend, any Acquisition Proposal, (iii) agree totake any action not previously taken to render the provisions of any anti-takeover statute, acceptrule or regulation (including Sections 2538 through 2588, approveinclusive, endorse of the PBCL) inapplicable to any person (other than Parent, Purchaser or recommend (their affiliates) or publicly propose group or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (viv) submit cause the Company to accept such Acquisition Proposal and/or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Acquisition Agreement”) related to any Acquisition Proposal Proposal.
(c) In addition to the vote of any shareholders of Company or any Subsidiary. Each obligations of the Company set forth in paragraphs (a) and its Subsidiaries (b) above, the Company shall promptly (and in any event, within one business day) advise Parent orally and in writing of any request for information or the submission or receipt after the date of this Agreement of any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to lead to any Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the person making any such request, Acquisition Proposal or inquiry and the Company’s response or responses thereto. The Company will immediately keep Parent fully informed of the status and details (including amendments or proposed amendments) of any such request, Acquisition Proposal or inquiry. Immediately following the execution of this Agreement, the Company will cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons parties conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that of the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Euramax International PLC), Merger Agreement (Euramax International PLC)
No Solicitation. (a) From and after the date of this Agreement Date until the Closing or termination of this Agreement pursuant to Article VIIIARTICLE 7, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders stockholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition ProposalProposal (as hereinafter defined), (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders securityholders of Company or any SubsidiarySubsidiary or (vi) enter into any other transaction or series of transactions not in the ordinary course of the Company’s business, the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 5.2 not to cause authorize or permit such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.15.2.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Exponential Interactive, Inc.)
No Solicitation. From and after The Company agrees that none of the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIIICompany, neither the Company nor any of its Subsidiaries nor or any of the Company Shareholders will, nor will Company’s or any of them authorize its Subsidiaries’ officers or permit any of their respective officersdirectors shall, directors, and that it shall use all reasonable efforts to cause the Company’s and its affiliates, shareholders or employees or Subsidiaries, agents and representatives (including any investment banker, attorney or other advisor or representative accountant retained by the Company or any of its Subsidiaries) not to (and shall not authorize or permit any of them (all of the foregoing collectively being the “Company Representatives”) to), directly or indirectly, : (i) solicit, initiate, seek, entertain, encourage, facilitateknowingly induce any inquiry concerning, support or induce the making, submission or announcement of of, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, ; (ii) enter into, participate in, maintain or continue engage in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person other than its representatives (including and limited to any non-public of its investment bankers, financial advisors, attorneys or accountants) any nonpublic information with respect to, or take any other action regarding, to encourage any inquiry, expression inquiries concerning the making of interest, any proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, an any Acquisition Proposal, ; (iii) agree to, accept, approve, endorse endorse, recommend or recommend (make or publicly propose authorize any public statement, recommendation or announce any intention or desire to agree to, accept, approve, endorse or recommend) solicitation in support of any Acquisition Proposal, ; or (iv) execute or enter into into, or agree to execute or enter into, any letter of intent or similar document or any other Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition ProposalProposal or transaction contemplated thereby, except in the case of clauses (ii), (iii) or (viv) submit any Acquisition Proposal to the vote of any shareholders of Company extent specifically permitted pursuant to Sections 5.3(c) or any Subsidiary5.3(d). Each of the The Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations (including, without limitation, any such activities, discussions or negotiations conducted by affiliates, directors, officers, employees, agents and representatives (including any investment banker, financial advisor, attorney, accountant or other representative) of the Company or any of its Subsidiaries) with any Persons third parties conducted prior to or on the Agreement Date heretofore with respect to the consideration of any Acquisition Proposal. If The Company will exercise any Company Representative, whether rights under any confidentiality or non-disclosure agreements with any such third parties in his connection with the consideration of any Acquisition Proposal to require the return or her capacity as such or in any other capacity, takes any action that destruction of non-public information provided prior to the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes date of this Agreement by the Company, its Subsidiaries or their agents and representatives to have breached this Section 6.1any such third parties.
Appears in 2 contracts
Sources: Merger Agreement (Micron Technology Inc), Merger Agreement (Lexar Media Inc)
No Solicitation. From (a) Such Stockholder has ceased all, and after will not engage in any, discussions and/or negotiations with any Persons directly or indirectly relating to the Agreement Date until sale or other disposition of all or any portion of the Closing Class B Shares, or termination of this Agreement pursuant the voting thereof (an "Alternate Transaction"). Each Stockholder will not, directly or indirectly through any officer, director, employee, representative, agent, financial advisor or otherwise, solicit, initiate or encourage inquiries or proposals or offers from any Person regarding an Alternate Transaction.
(b) Each Stockholder will not, and will use its reasonable efforts to Article VIII, neither the Company nor any cause UGC and each of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) not to, directly or indirectly, (i) through any officer, director, employee, representative, agent, financial advisor or otherwise, solicit, initiateinitiate or encourage inquiries or submission of proposals or offers from any Person relating to any sale or other disposition of all or any portion of the assets, seekbusiness, entertainproperties (other than immaterial or insubstantial assets in the ordinary course of business), encouragepatents, facilitatepatent applications or other intellectual property (including covenants not to ▇▇▇, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutescross-licenses and exclusive licenses) of, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate any equity interest in, maintain UGC or continue any communications (except solely to provide written notice as to the existence of these provisions) its Subsidiaries or negotiations any business combination involving UGC or any of its Subsidiaries, whether by merger, consolidation, purchase or sale of assets, tender offer or otherwise or participate in any negotiation regarding, or deliver or make available furnishing to any other Person any non-public information with respect to, or otherwise cooperate in any way with, or assist in, facilitate or encourage, any effort or attempt by any other Person to do or seek to do any of the foregoing (any of the foregoing, an "Extraordinary Transaction"). In connection with any Extraordinary Transaction, nothing in this Section 8.4(b) shall be construed as requiring any director or officer of UGC or any of its Subsidiaries that are not wholly owned, directly or indirectly, by UGC to take any other action regarding, any inquiry, expression that will constitute a breach of interest, proposal such director's or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal officer's fiduciary duties to the stockholders of UGC or such Subsidiary.
(c) Each Stockholder will vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and voted all existing activities, discussions relevant shares of capital stock of UGC or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in of any other capacity, takes Person held by such Stockholder and its respective Affiliates (other than UGC and its Subsidiaries) against any action Extraordinary Transaction or Alternate Transaction that is presented or proposed at any time after the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes date of this Agreement and prior to have breached the termination of this Section 6.1Agreement. Such Stockholder will notify Liberty immediately if any inquiries or proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with such Stockholder, or, to the actual knowledge of such Stockholder and subject to any duties of confidentiality to which such Stockholder may be subject as a member of the board of directors or other governing body of UGC or any of its Subsidiaries, UGC or any of its Subsidiaries, in each case in connection with any of the foregoing.
Appears in 2 contracts
Sources: Share Exchange Agreement (Liberty Media Corp /De/), Share Exchange Agreement (Carollo Albert M)
No Solicitation. From Subject to Section 6.4(d) and Section 6.4(f), from and after the Agreement Date date hereof until the Closing or earlier of the Effective Time and the termination of this Agreement pursuant to Article in accordance with ARTICLE VIII, neither the Company nor any (including the board of its Subsidiaries nor any directors of the Company Shareholders willand any committee thereof) and the Company Subsidiaries will not, nor and will any of them not authorize or permit any of their respective officersRepresentatives to, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) and shall cause their respective Representatives not to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support encourage or knowingly facilitate or induce the making, submission or public announcement of an Acquisition Proposal, or the making of any inquiry, expression of interest, offer or proposal or offer that constitutes, would constitute or would reasonably be expected to lead toto an Acquisition Proposal or the making or consummation thereof, (ii) furnish to any Person any non-public information relating to the Company or any Company Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any Company Subsidiaries to any Person, in each case in connection with or for the purpose of encouraging or facilitating an Acquisition Proposal or any inquiry, offer or proposal that would reasonably be expected to lead to an Acquisition Proposal, (iiiii) engage in, enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, regarding an Acquisition Proposal or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, offer or proposal or offer that constitutes, or would reasonably be expected to lead to, to an Acquisition Proposal, except to notify a Person that had made or, to the Knowledge of the Company, is making inquiries with respect to, or is considering making, an Acquisition Proposal of the existence of the provisions of this Section 6.4(b), (iiiiv) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent Proposal or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders securityholders of the Company or any Company Subsidiary. Each , (v) enter into any commitment, agreement in principle, letter of the Company and its Subsidiaries will immediately cease and cause to be terminated intent, term sheet or any and all existing activitiesother agreement, discussions understanding or negotiations with any Persons conducted prior to contract (whether binding or on the Agreement Date with respect not) contemplating or otherwise relating to any Acquisition Proposal. If Proposal or enter into any Company Representativeagreement, whether in his contract, understanding or her capacity as such commitment to abandon, terminate or in fail to consummate the Merger or (vi) resolve, propose or agree to do any other capacity, takes any action that of the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Numerex Corp /Pa/), Merger Agreement (Sierra Wireless Inc)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any (a) Except as permitted by Section 6.10 of the Company Shareholders willMerger Agreement, nor each Stockholder will any of them authorize or permit any of their not, and such Stockholder will direct and use its reasonable best efforts to cause its and its Affiliates' respective officers, directors, affiliatesemployees, shareholders or employees or any investment bankerbankers, attorney or consultants, attorneys, accountants, agents and other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) representatives not to, directly or indirectly, (i) take any action to solicit, initiateinitiate or knowingly encourage or facilitate the making of any Acquisition Proposal or any inquiry with respect thereto or engage in discussions or negotiations with any Person with respect thereto, seekor disclose any nonpublic information or afford access to books or records to, entertainany Person that has made, encourage, facilitate, support or induce to the Stockholder's knowledge is considering making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) or approve or recommend, or propose to approve or recommend, or execute or enter into any letter of intent intent, agreement in principle, merger agreement, option agreement, acquisition agreement or any other Contract contemplating or otherwise similar agreement relating to any an Acquisition Proposal, or (v) submit propose publicly or agree to do any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company foregoing relating to an Acquisition Proposal.
(b) Except as permitted by Section 6.10 of the Merger Agreement, the Stockholder (A) will, and will cause its Subsidiaries will Affiliates to, immediately cease and cause to be terminated any and will use reasonable best efforts to cause its and their officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all existing activitiesdiscussions and negotiations, discussions or negotiations if any, that have taken place prior to the date hereof with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal and (B) will promptly request each Person, if any, that has executed a confidentiality agreement within one year prior to the date hereof in connection with its consideration of any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Affiliates. In the event a Stockholder receives an Acquisition Proposal. If , any indication of which a Stockholder has knowledge that any Person is considering making an Acquisition Proposal, or any request for nonpublic information relating to the Stockholder, the Company or any Company RepresentativeSubsidiary by any Person that has made, whether or to the Stockholder's knowledge may be considering making, an Acquisition Proposal, the Stockholder will (i) promptly (and in no event later than 48 hours after receipt of any Acquisition Proposal) notify (which notice will be provided orally and in writing and will identify the Person making such Acquisition Proposal or request and set forth the material terms thereof) Parent thereof and (ii) will keep Parent reasonably and promptly informed of the status and material terms of (including with respect to changes to the status or material terms of) any such Acquisition Proposal or request and will provide as soon as practicable after receipt copies of any correspondence and other written materials sent or provided to the Stockholders in connection therewith.
(c) It is understood that any violation of the restrictions set forth in this Section 2.5 by any officer, director, employee, investment banker, consultant, attorney, accountant, agent or other representative of such Stockholder or any of its Affiliates, at the direction or with the consent of such Stockholder or any of its Affiliates, will be deemed to be a breach of this Section 2.5 by such Stockholder.
(d) Nothing in this Agreement will be deemed to require any Stockholder or representative of any Stockholder who is also a member of the Company Board to take any action or refrain from taking any action in his or her capacity as such or in any other capacity, takes any action that a member of the Company Board to the extent such action is obligated permitted by Section 6.10 of the Merger Agreement.
(e) The provisions of this Section 2.5 will remain in effect only during the Support Period and nothing herein will prevent the Stockholders from participating in discussions, negotiations or furnishing information with respect to an Acquisition Proposal if the Company would be permitted to participate in such discussions, negotiations or furnish such information pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes terms and conditions of this Agreement to have breached this Section 6.1the Merger Agreement.
Appears in 2 contracts
Sources: Support Agreement (R H Donnelley Corp), Support Agreement (R H Donnelley Corp)
No Solicitation. From and after the Agreement Date until the Closing or (a) Prior to termination of this Agreement pursuant to Article VIIIX hereof, neither the Company Company, its subsidiaries, if any, or Shareholder shall, nor any of its Subsidiaries nor any of shall the Company Shareholders will, nor will any of them or Shareholder authorize or permit any of their respective officers, directors, affiliates, shareholders directors or employees of, or any investment bankerbankers, attorneys or other agents or representatives retained by or acting on behalf of, the Company, any of its subsidiaries or Shareholder, or authorize any third party to: (i) initiate, solicit or encourage, directly or indirectly, any inquiries or the making of any proposal that constitutes an Acquisition Proposal (as hereinafter defined), (ii) engage or participate in negotiations or discussions with, or furnish any information or data to, or take any other action to, facilitate any inquiries or making any proposal by, any third party relating to an Acquisition Proposal, (iii) enter into any agreement with respect to any Acquisition Proposal or approve an Acquisition Proposal, (iv) negotiate or enter discussions with, or furnish any information to, any third party (a “Potential Acquiror”) with respect to any unsolicited Acquisition Proposal, or (v) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Proposal. In the event that the Company shall receive any Acquisition Proposal, it shall promptly (and in no event later than 48 hours after receipt thereof) furnish to WBSI the identity of the recipient of the Acquisition Proposal and of the Potential Acquiror, the terms of such Acquisition Proposal, and copies of such Acquisition Proposal and all information provided by the Potential Acquiror. The Company and the Shareholder understand and agree that any violation of the restrictions set forth in this Section 8.9 by the Company or any of its subsidiaries or Shareholder, or by any director or officer of the Company or any of its subsidiaries or any financial advisor, attorney or other advisor or representative retained of the Company or any of its subsidiaries, whether or not such person is purporting to act on behalf of the Company, any of its subsidiaries, the Shareholder or otherwise, or any violation of these restrictions by any third party authorized by the Company or the Shareholder to do so, shall be deemed to be a breach of them this Section 8.9 sufficient to enable WBSI to terminate this Agreement pursuant to Article X hereof and seek injunctive and monetary relief to the fullest extent permitted by applicable law.
(all b) For the purposes of the foregoing collectively being the this Agreement, “Company Representatives”) to, directly or indirectly, Acquisition Proposal” shall mean (i) solicitany proposal, initiatewhether in writing or otherwise, seekmade by any person other than WBSI, entertainto acquire “beneficial ownership” (as defined under Rule 13(d) of the Securities Exchange Act of 1934, encourage, facilitate, support or induce the making, submission or announcement as amended) of any inquirymaterial part of the assets (other than in the ordinary course of the Company’s business) or outstanding capital stock (or securities convertible into shares of capital stock) of any of the Company or its subsidiaries pursuant to a merger, expression consolidation, exchange of interestshares or other business combination, proposal sale of shares of capital stock (or securities convertible into capital stock), sales of assets, tender offer that constitutesor exchange offer or similar transaction involving the Company or its subsidiaries, including, without limitation, any sale or transfer or license of the Company’s intellectual property, or (ii) any other transaction or proposed transaction, the consummation of which would reasonably be expected to lead toimpede, an Acquisition Proposalinterfere with, (ii) enter into, participate in, maintain prevent or continue any communications (except solely to provide written notice as to materially delay the existence of these provisions) or negotiations regardingtransactions contemplated by this Agreement, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or which would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire dilute the benefits of such transactions to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1WBSI.
Appears in 2 contracts
Sources: Share Acquisition Agreement (OneMeta Inc.), Share Acquisition Agreement (OneMeta Inc.)
No Solicitation. From (a) Each of Molson and after Coors agrees that it shall not, and it shall not permit any of its Subsidiaries or any of the Agreement Date until officers or directors of it or its Subsidiaries to, and that it shall direct and cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, initiate, solicit, encourage or otherwise knowingly facilitate any inquiries or the Closing making by any third party (other than the other party hereto and/or its Subsidiaries) of any proposal or termination offer with respect to a purchase, merger, reorganization, share exchange, consolidation, amalgamation, arrangement, business combination, liquidation, dissolution, recapitalization or similar transaction involving any material portion of this Agreement pursuant the consolidated assets of Molson or Coors or any shares of any class of equity securities of Molson or Coors (any such proposal or offer being hereinafter referred to Article VIII, as an "Acquisition Proposal"). Each of Molson and Coors further agrees that neither the Company it nor any of its Subsidiaries nor any of the Company Shareholders willofficers and directors of it or its Subsidiaries shall, nor will any of them authorize or permit any of their respective officersand that it shall direct and cause its and its Subsidiaries' employees, directors, affiliates, shareholders or employees or agents and representatives (including any investment banker, attorney or other advisor or representative accountant retained by it or any of them (all of the foregoing collectively being the “Company Representatives”its Subsidiaries) not to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of engage in any inquiry, expression of interest, proposal or offer that constitutesnegotiations concerning, or would reasonably be expected to lead provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal, (ii) enter into, participate in, maintain approve or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regardingrecommend, or deliver or make available propose publicly to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse approve or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (viii) submit execute or enter into, or publicly propose to accept or enter into an agreement with respect to an Acquisition Proposal, including a letter of intent, agreement in principle, option agreement, merger agreement, acquisition agreement or other agreement in furtherance of an Acquisition Proposal.
(b) Notwithstanding the provisions of Section 6.2(a), nothing contained in this Agreement shall prevent Molson or Coors, or their respective boards of directors, from (A) complying with Rule 14a-9 or Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal and, in the case of Molson and its board of directors, from complying with Section 99 of the Securities Act (Ontario) and similar provisions of the Securities Laws of each of the other provinces and territories of Canada (it being understood that any such communication constituting a Change in Recommendation shall be made in compliance with Section 2.5) or from calling and holding a meeting of the holders of Molson Common Shares and Molson Options requisitioned by such shareholders pursuant to Section 143 of the CBCA; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the board of directors of Molson or Coors, as the case may be, receives from the Person so requesting such information an executed confidentiality agreement on terms no less favorable in the aggregate to the disclosing party than those contained in the Confidentiality Agreement (or to the extent any such terms are less favorable to the disclosing party, the Confidentiality Agreement shall thereupon be deemed waived to the extent necessary to give the other party to the Agreement the benefit of such less favorable terms); (C) effecting a Change in Recommendation in respect of an Acquisition Proposal; (D) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or (E) (i) in the case of Molson, concurrently with the termination of this Agreement by Molson pursuant to Section 8.1(j) and following payment by Molson of the Termination Fee to Coors pursuant to Section 8.3(b)(iv), entering into an agreement with respect to an Acquisition Proposal or any agreement referred to in clause (iii) of Section 6.2(a) with respect to an Acquisition Proposal or (ii) in the case of Coors, concurrently with the termination of this Agreement by Coors pursuant to Section 8.1(k) and following payment by Coors of the Termination Fee to Molson pursuant to Section 8.3(c)(iv), entering into any agreement with respect to any Acquisition Proposal or any agreement referred to in clause (iii) of Section 6.2(a) with respect to an Acquisition Proposal, if and only to the vote extent that:
(i) in each such case referred to in clause (B), (C) or (D), (1) the Molson Shareholder Approval or the Coors Stockholder Approval, as applicable, has not yet been obtained, and (2) the board of directors of Molson or Coors, as the case may be, determines in good faith after consultation with outside legal counsel that failure to take the foregoing action would be inconsistent with its fiduciary duties under applicable Law (including, without limitation, the duty of care);
(ii) in each case referred to in clause (B) or (D) above, the board of directors of Molson or Coors, as the case may be, determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal; and
(iii) in the case referred to in clause (E) above, prior to Molson or Coors, as the case may be, effecting a termination of this Agreement pursuant to Sections 8.1(j) or 8.1(k), as applicable, (1) the Molson Shareholder Approval or the Coors Stockholder Approval, as applicable, shall not have been obtained, (2) such party shall be in compliance with the provisions of this Section 6.2, (3) the board of directors of such party shall have determined in good faith, and, in the case of Molson, after considering the recommendation of the Independent Committee, that such Acquisition Proposal constitutes a Superior Proposal after giving effect to all of the adjustments which may be offered by the other party pursuant to clause (5) below; (4) such party shall have notified the other party in writing, at least five days in advance of termination that it is considering terminating this Agreement pursuant to Section 8.1(j) or (k), as applicable, specifying the material terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal and delivering the documents and information required to be delivered pursuant to Section 6.2(c); and (5) during such five-day period, such party shall have negotiated, and shall have made its financial and legal advisors available to negotiate, with the other party should the other party elect to make such adjustments in the terms and conditions of this Agreement such that, after giving effect thereto, such Acquisition Proposal no longer constitutes a Superior Proposal. As used herein, "Superior Proposal" means a bona fide written Acquisition Proposal with respect to a party that the board of directors of such party concludes in good faith, after consultation with financial advisors and outside legal counsel, and taking into account all legal, financial, regulatory and other aspects of the proposal, is (i) more favorable, from a financial point of view, to the stockholders or shareholders, as the case may be, of the party receiving the proposal and (ii) fully financed or reasonably capable of being fully financed, reasonably likely to receive all Approvals on a timely basis and otherwise reasonably capable of being completed on a timely basis; provided that for purposes of this definition, "Acquisition Proposal" shall have the meaning set forth above, except that the references in the definition thereof to "any shares" shall be deemed to be references to "a majority of all outstanding shares of each class" and references to "any material portion" shall be deemed to be references to "all or substantially all".
(c) Each of Molson and Coors shall notify Coors, in the case of Molson, and Molson, in the case of Coors, promptly (but in any event within 24 hours) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its representatives, indicating, in connection with such notice, the name of such Person and the material terms and conditions of any shareholders proposals or offers and providing, within one business day of Company receipt thereof, a copy of all documentation setting forth the terms of any such inquiry, proposal or offer, and thereafter shall keep Coors, in the case of Molson, and Molson, in the case of Coors, informed, on a current basis, of the status and terms of any Subsidiary. such proposals or offers and the status of any such discussions or negotiations (including by delivering any further documentation of the type referred to above).
(d) Each of the Company Molson and its Subsidiaries will Coors shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons parties conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If Each of Coors and Molson shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring it or any Company Representativeof its Subsidiaries to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries. Neither Coors nor Molson shall terminate, whether amend, modify or waive any provision of any confidentiality or standstill or similar agreement to which Molson, Coors or any of their respective Subsidiaries is a party.
(e) Each of Molson and Coors shall take the necessary steps to promptly inform the individuals or entities referred to in his or her capacity as such or the first sentence hereof of the obligations undertaken in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.6.2. 6.3
Appears in 2 contracts
Sources: Combination Agreement (Coors Adolph Co), Combination Agreement (Coors Adolph Co)
No Solicitation. From and after (a) Following the Agreement Date until the Closing or termination date of this Agreement and prior to the earlier of the Funding Date or the date on which this Agreement is terminated pursuant to Article VIIIV hereof, neither the Company nor any of and its Subsidiaries nor any of the Company Shareholders willwill not, nor and will any of them authorize or not permit any of their respective officers, directors, affiliatesemployees, shareholders or employees or advisors, agents and representatives, including any investment banker, attorney or other attorney, advisor or representative accountant retained by it or any of them its Subsidiaries (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seekencourage (including by providing information or assistance) or facilitate any inquiries, entertainproposals or offers with respect to, encourageor the making or completion of, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would may reasonably be expected to lead to, an Acquisition Alternative Transaction Proposal, (ii) enter into, participate in, maintain provide or continue any communications (except solely cause to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person be provided any non-public information with respect toor data relating to the Company or any of its Subsidiaries in connection with, or take have any other action regardingdiscussions with, any inquiry, expression of interest, proposal person relating to or offer that constitutes, in connection with an actual or would reasonably be expected to lead to, an Acquisition proposed Alternative Transaction Proposal, (iii) agree toengage in any discussions or negotiations concerning an Alternative Transaction Proposal, accept, approve, endorse or recommend (otherwise encourage or publicly propose facilitate any effort or announce any intention attempt to make or desire to agree to, accept, approve, endorse or recommend) any Acquisition implement an Alternative Transaction Proposal, (iv) enter into approve, recommend, agree to or accept, or propose publicly to approve, recommend, agree to or accept, any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Alternative Transaction Proposal, or (v) submit approve, endorse or recommend, agree to or accept, or propose to approve, endorse, recommend, agree to or accept, or execute or enter into, any Acquisition Proposal letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to the vote any Alternative Transaction Proposal. The Company shall, and shall cause each of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will and shall use reasonable best efforts to cause its Representatives to, (i) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons persons conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Alternative Transaction Proposal. If , (ii) request the prompt return or destruction of all confidential information previously furnished to any person that has made or indicated an intention to make an Alternative Transaction Proposal, and (iii) not waive or amend any “standstill” provision or provisions of similar effect to which it is a part or of which it is a beneficiary.
(b) Notwithstanding anything to the contrary contained in Section 3.3(a), in the event that, prior to the receipt of Stockholder Approval, the Company Representativereceives an unsolicited, whether in his or her capacity as such or in any other capacity, takes any action bona fide written Alternative Transaction Proposal that did not result from a breach of Section 3.3(a) and that the Company determines, after consulting with its outside counsel and financial advisor, is obligated reasonably expected to lead to a Superior Proposal (as defined in Section 3.3(f)(3)), it may, prior to (but not after) the receipt of Stockholder Approval (and only if and to the extent that the Board of Directors concludes in good faith, after consultation with its outside legal counsel, that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties under applicable law):
(1) Furnish nonpublic information to the person or group of persons making such bona fide written Alternative Transaction Proposal, provided that prior to furnishing any such nonpublic information, the Company receives from such person or group of persons an executed confidentiality agreement containing terms at least as restrictive with respect to such person or group of persons as the terms contained in the confidentiality agreements entered into with either Investor (in the event that the applicable term in the confidentiality agreement with one Investor differs from the applicable term in the confidentiality agreement with the other Investor, the more restrictive of those terms shall govern with respect to the preceding clause); and provided, further, that the Company shall promptly (and in any event within one Business Day) provide or make available to the Investors any nonpublic information that is provided or made available to the person making such bona fide written Alternative Transaction Proposal which was not previously provided or made available to the Investors; and
(2) Engage in discussions or negotiations with such person or group of persons with respect to such bona fide written Alternative Transaction Proposal.
(c) As promptly as practicable (and in any event within one Business Day) after receipt of any Alternative Transaction Proposal or any request for nonpublic information or any inquiry that would reasonably be expected to lead to any Alternative Transaction Proposal, the Company shall provide the Investors with a notice of all terms and conditions of such Alternative Transaction Proposal, request or inquiry, including in each case the identity of the person making any such Alternative Transaction Proposal, request or inquiry. In addition, the Company shall keep the Investors informed on a current basis with respect to any changes in any Alternative Transaction Proposal, request or inquiry.
(d) Notwithstanding anything in this Agreement to the contrary, at any time prior to the receipt of Stockholder Approval, the Board of Directors may in response to a Alternative Transaction Proposal, if it concludes in good faith (after consultation with its outside legal advisors) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties under applicable law, withdraw, modify or change the Board Recommendation (a “Change of Recommendation”); provided, that: (i) the Company shall have complied in all respects with Section 3.3(a), (b) and (c), (ii) the Company shall have notified the Investors in writing of its intent to change the Board Recommendation and, prior to effecting such Change of Recommendation, the Company shall have given the Investors three (3) days after delivery of such written notice, an opportunity to propose revisions to the terms of this Agreement (or make another proposal) and if the Investors propose to revise the terms of this Agreement, the Company shall have negotiated in good faith with the Investors with respect to such proposed revisions or other proposal; and (iii) the Board of Directors shall have determined in good faith, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications made or agreed to by the Investors, if any, that such Alternative Transaction Proposal constitutes or is reasonably expected to lead to a Superior Proposal. In the event the Board of Directors makes the determination referred to in clause (iii) of this paragraph and thereafter determines to withdraw, modify or change the Board of Directors Recommendation pursuant to this Section 6.1 3.3(d), the procedures referred to cause such Company Representative not above shall apply to takeany subsequent withdrawal, then amendment or change. In the event of any material revisions to the Alternative Transaction Proposal, the Company shall deliver a new written notice to the Investors and again comply with the requirements of this Section 3.3(d) with respect to such new written notice, except that the period of time referenced in clause (ii) of the foregoing sentence shall be two (2) days with respect to such notice of material revision. Notwithstanding any Change of Recommendation, this Agreement shall be submitted to the stockholders of the Company at the Stockholders’ Meeting for the purpose of voting on the Stockholder Proposal and nothing contained herein shall relieve the Company of such obligation. In addition to the foregoing, the Company shall not submit to the vote of its stockholders any Alternative Transaction Proposal other than the transactions contemplated hereby.
(e) Nothing in this Agreement shall prohibit the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its stockholders any position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to the Company’s stockholders if the Board of Directors (after consultation with its legal advisors) concludes that its failure to do so would be inconsistent with its fiduciary duties; provided, that any such disclosure (other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed for all purposes to be a Change of Recommendation unless the Board of Directors expressly and concurrently reaffirms the Board Recommendation.
(f) As used in this Agreement to Agreement, the following terms shall have breached this Section 6.1.the following meanings:
Appears in 2 contracts
Sources: Funding Agreement (SWS Group Inc), Funding Agreement (Hilltop Holdings Inc.)
No Solicitation. From (i) Parent agrees that it will, and after will cause its Representatives to, immediately cease and cause to be terminated all existing discussions, negotiations and communications with any Persons with respect to any proposal for a merger, consolidation or other business combination resulting in a change of control of Parent or sale of all or substantially all of the Agreement Date until Parent Shares or Parent's assets that would be reasonably likely to (A) materially adversely affect the Closing or termination ability of Parent to consummate the transactions contemplated by this Agreement pursuant without material delay or (B) require a vote of Parent's stockholders prior to Article VIIIthe Parent Stockholders' Meeting (a "Parent Acquisition Proposal"). In addition, neither the Company nor Parent agrees that it will not authorize its employees to continue any of its Subsidiaries nor existing discussions, negotiations or communications with any of the Company Shareholders willPersons with respect to any Parent Acquisition Proposal.
(ii) Except as provided in Section 7.2(c), nor Parent will any of them not, and will not authorize or permit any of their respective officers, directors, affiliates, shareholders its Representatives or authorizes its employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (iA) solicit, initiate, seeksolicit or knowingly encourage or knowingly facilitate any inquiries with respect to, entertain, encourage, facilitate, support or induce the making, submission or announcement making of any inquiry, expression of interest, offer or proposal or offer that which constitutes, or would is reasonably be expected likely to lead to, an any Parent Acquisition Proposal, (iiB) enter intointo or participate in negotiations or discussions with, participate inor provide any information or data to, maintain or continue any communications (Person relating to any Parent Acquisition Proposal, except solely to provide written notice as to the existence of these provisions, (C) make or negotiations regardingauthorize any statement, recommendation or solicitation in support of, or deliver or make available to any Person any non-public information with respect to, or take any other action regardingapprove, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Parent Acquisition Proposal, or (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (ivD) enter into any letter of intent or similar document or any other Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Parent Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each transaction contemplated thereby.
(iii) Any violation of the Company and its Subsidiaries foregoing restrictions by any of Parent's Representatives will immediately cease and cause be deemed to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes a breach of this Agreement by Parent, whether or not such Representative is so authorized and whether or not such Representative is purporting to have breached this Section 6.1act on behalf of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Business Objects Sa), Merger Agreement (Crystal Decisions Inc)
No Solicitation. From and after Until the Agreement Date until earlier of the Closing Effective Time or the date of termination of this Agreement pursuant to Article VIIIthe provisions of Section 9.1 hereof, neither the Company will not take, nor will the Company permit any of the Company's officers, directors, employees, stockholders, attorneys, investment advisors, agents, representatives, Affiliates or Associates (collectively, "Representatives") to (directly or indirectly) take any of the following actions with any Person other than Acquiror, Merger Sub and their designees: (a) solicit, encourage, initiate, entertain, accept receipt of, review or encourage any proposals or offers from, or participate in or conduct discussions with or engage in negotiations with, any Person relating to any offer or proposal, oral, written or otherwise, formal or informal (a "Competing Proposed Transaction"), with respect to any possible Business Combination with the Company or any of its Subsidiaries nor Subsidiaries, (b) provide information with respect to the Company to any Person, other than Acquiror or Merger Sub, relating to (or which the Company believes would be used for the purpose of formulating an offer or proposal with respect to), or otherwise assist, cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible Business Combination with the Company or any Subsidiary of the Company Shareholders will(whether such Subsidiaries are in existence on the date hereof or are hereafter organized), nor will (c) agree to, enter into a Contract with any Person, other than Acquiror or Merger Sub, providing for, or approve a Business Combination with the Company or any Subsidiary (whether such Subsidiaries are in existence on the date hereof or are hereafter organized), (d) make or authorize any statement, recommendation, solicitation or endorsement in support of them any possible Business Combination with the Company or any Subsidiary (whether such Subsidiary is in existence on the date hereof or are hereafter organized) other than by Acquiror or Merger Sub, or (e) authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected Company's Representatives to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of such action. The Company or any Subsidiary. Each of the Company and its Subsidiaries will shall immediately cease and cause to be terminated any and all existing activities, discussions such contacts or negotiations with any Persons conducted Person relating to any such transaction or Business Combination. In addition to the foregoing, if the Company receives prior to the Effective Time or on the termination of this Agreement Date any offer or proposal (formal or informal, oral, written or otherwise) relating to, or any inquiry or contact from any Person with respect to any Acquisition Proposal. If any Company Representativeto, whether in his or her capacity as such or in any other capacitya Competing Proposed Transaction, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall immediately notify Acquiror thereof and provide Acquiror with the details thereof, including the identity of the Person or Persons making such offer or proposal, and will keep Acquiror fully informed on a current basis of the status and details of any such offer or proposal and of any modifications to the terms thereof; PROVIDED, HOWEVER, that this provision shall not in any way be deemed to limit the obligations of the Company and its Representatives set forth in the previous sentence. Each of the Company and Acquiror acknowledge that this Section 5.2 was a significant inducement for all purposes of Acquiror to enter into this Agreement and the absence of such provision would have resulted in either (i) a material reduction in the merger consideration to have breached be paid to the stockholders of the Company or (ii) a failure to induce Acquiror to enter into this Section 6.1Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Valueclick Inc/Ca), Merger Agreement (Valueclick Inc/Ca)
No Solicitation. From and after (a) Until the Agreement Date until earlier of (i) the Closing Closing, or (ii) the date of termination of this Agreement pursuant to Article VIIIthe provisions of Section 10.1 hereof, neither the Company nor any of its Subsidiaries Company Stockholder shall, nor shall the Company or any Company Stockholder permit any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliatesmembers, shareholders employees, shareholders, agents, representatives or employees or affiliates of any investment bankerAcquired Entity (each, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the a “Company RepresentativesRepresentative”) to, directly or indirectly, take any of the following actions with any party other than Parent and its designees: (iA) solicit, initiate, seek, entertain, encourage, facilitate, support participate or induce the making, submission knowingly encourage any negotiations or announcement discussions with respect to any offer or proposal to acquire all or any portion of any inquiry, expression of interest, proposal Acquired Entity’s business or offer that constitutesproperties, or would reasonably be expected any equity interest in any Acquired Entity, including shares of capital stock, or any rights to lead toacquire any shares of capital stock or other equity interests in such Acquired Entity, an Acquisition Proposalregardless of the form of transaction (a “Competing Transaction”), or effect any such transaction, (iiB) enter into, participate in, maintain or continue disclose any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available information to any Person concerning the business or properties of any non-public information with respect toAcquired Entity, or take afford to any Person access to the Company’s properties, books or records other action regardingthan in the ordinary course of business, (C) assist or cooperate with any inquiry, expression of interest, Person to make any proposal or offer that constitutesregarding a Competing Transaction, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (ivD) enter into any letter of intent agreement with any Person providing for a Competing Transaction. In the event that the Company, any Company Stockholder or any other Contract contemplating Company Representative shall receive, prior to the Closing or the termination of this Agreement in accordance with Section 10.1 hereof, any offer, proposal, or request, directly or indirectly, of the type referenced in clause (A), (C) or (D) above, or any request for disclosure or access as referenced in clause (B) above, the Company, Company Stockholder or such Company Representative, as applicable, shall, or shall cause the Company, such Company Stockholder or such Company Representative to, immediately (i) terminate, suspend or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated discontinue any and all existing activities, discussions or other negotiations with such Person with regard to such offers, proposals, or requests and (ii) notify Parent thereof, including information as to the identity of the Person making any Persons conducted prior such offer or proposal and the specific terms of such offer or proposal, as the case may be, and such other information related thereto as Parent may reasonably request, including, but not limited to a copy thereof or on a summary of the Agreement Date principal terms of any such inquiry, offer or proposal that is not in writing.
(b) The parties hereto agree that irreparable harm would occur in the event that the provisions of this Section 5.2 were not performed in accordance with respect their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to an immediate injunction or injunctions, without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent breaches of the provisions of this Section 5.2 and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such other remedy to which Parent may be entitled at law or in equity. Without limiting the foregoing, it is understood that any other capacityviolation of the restrictions set forth above (i) by any Founder, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then officer or director of the Company shall be deemed for all purposes to be a breach of this Agreement to have breached this Section 6.1by the Company and (ii) by any other Company Stockholder shall be the sole responsibility of such Company Stockholder.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Cornerstone OnDemand Inc)
No Solicitation. 6.3.1. From and after the date of this Agreement Date until the Closing or termination of this Agreement pursuant to Article VIIIAgreement, neither the Sellers, the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, managers (or directors, as the case may be), affiliates, shareholders members (or stockholders, as the case may be) or employees or any investment advisor or banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders Members (or securityholders, as the case may be) of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 6.3 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.16.3.
6.3.2. The Sellers and the Company shall immediately (and in no event later than 24 hours) notify Purchaser orally and in writing after receipt by the Sellers, the Company and/or any Subsidiary (or, to the knowledge of the Company, by any of the Company Representatives), of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) any other notice that any Person is considering making an Acquisition Proposal, or (iv) any request for nonpublic information relating to the Company or any Subsidiary or for access to any of the properties, books or records of the Company or any Subsidiary by any Person or Persons other than Purchaser. Such notice shall describe (A) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request, and (B) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request. The Sellers and the Company shall keep Purchaser fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Purchaser a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. The Sellers and the Company shall provide Purchaser with 48 hours prior notice (or such lesser prior notice as is provided to the members of its management) of any meeting of the Members of the Company at which it is reasonably expected to discuss any Acquisition Proposal.
Appears in 2 contracts
Sources: Purchase Agreement (Answers CORP), Purchase Agreement (Answers CORP)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant (a) Subject to Article VIIISection 5.3(b)-(f), neither the Company agrees that neither it nor any of its Subsidiaries nor any Subsidiary of the Company Shareholders willshall, nor will any of them authorize or permit any of and that it shall direct its and their respective officers, directors, affiliatesemployees, shareholders or employees or agents and representatives, including any investment banker, attorney or other advisor or representative accountant retained by it or any of them its Subsidiaries (all of the foregoing collectively being the “Company Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiateknowingly encourage (including by providing information) or facilitate any inquiries, seekproposals or offers with respect to, entertainor the making or completion of, encouragean Alternative Proposal, facilitate(ii) engage or participate in any negotiations concerning, support or induce provide or cause to be provided any non-public information or data relating to the makingCompany or any of its Subsidiaries in connection with, submission or announcement have any discussions with any person relating to, an actual or proposed Alternative Proposal, or otherwise knowingly encourage or facilitate any effort or attempt to make or implement an Alternative Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to any Alternative Proposal, (v) amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement of the Company with respect to an Alternative Proposal (except that references in the definition thereof to “20%” shall be deemed to be references to “50%” for purposes of this clause (v)), or (vi) resolve to propose or agree to do any of the foregoing. Without limiting the foregoing, it is understood that any action of any inquirySubsidiary of the Company or Representative of the Company that would be a violation if taken by the Company shall be deemed to be a breach of this Section 5.3 by the Company.
(b) The Company shall, expression shall cause each of interestits Subsidiaries to, proposal and shall direct each of its Representatives to, immediately cease any solicitations, discussions or offer negotiations with any Person (other than the parties hereto) that constituteshas made or indicated an intention to make an Alternative Proposal, in each case that exist as of the date hereof. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.3.
(c) Notwithstanding anything to the contrary in Section 5.3(a) or (b), at any time prior to satisfying the condition set forth in Section 6.1(a), the Company may, in response to an unsolicited Alternative Proposal which did not result from or arise in connection with a breach of Section 5.3(a) and which the Board of Directors of the Company (acting through its Special Committee) determines, in good faith, after consultation with its outside counsel and financial advisors, (1) may reasonably be expected to lead to a Superior Proposal, and (2) the failure to take action on such unsolicited Alternative Proposal would be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, (i) furnish non-public information with respect to the Company and its Subsidiaries to the person who has made a written Alternative Proposal and its Representatives pursuant to a customary confidentiality agreement no less restrictive of the other party than the Confidentiality Agreement, and which shall include an acknowledgment by such other party that the Company is obligated to comply with the provisions of Section 5.3(e) hereof, and (ii) participate in discussions or negotiations with such person and its Representatives regarding such Alternative Proposal; provided, however, (i) that Parent shall be entitled to receive an executed copy of such confidentiality agreement prior to or substantially simultaneously with the Company furnishing information to the person making such Alternative Proposal or its Representatives and (ii) that the Company shall simultaneously provide or make available to Parent any material non-public information concerning the Company or any of its Subsidiaries that is provided to the person making such Alternative Proposal or its Representatives which was not previously provided or made available to Parent.
(d) Subject to the permitted actions contemplated by Section 7.1(c)(ii), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify in a manner adverse to Parent or Merger Sub, or publicly propose to withdraw or modify in a manner adverse to Parent or Merger Sub, the Recommendation, (ii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Alternative Proposal or (iii) approve or recommend, or publicly propose to approve, endorse or recommend, any Alternative Proposal. Notwithstanding the foregoing, but subject to Section 5.4(b), if, prior to receipt of the Company Stockholder Approval, the Board of Directors of the Company or the Special Committee determines in good faith, after consultation with outside counsel, that failure to so withdraw or modify its Recommendation would be inconsistent with the Board of Directors of the Company’s or the Special Committee’s exercise of its fiduciary duties, the Board of Directors of the Company or any committee thereof may withdraw or modify its Recommendation.
(e) The Company promptly (and in any event within 48 hours) shall advise Parent orally and in writing of (i) any Alternative Proposal after the date hereof or indication or inquiry after the date hereof with respect to or that would reasonably be expected to lead to, an Acquisition to any Alternative Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to request after the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any date hereof for non-public information with respect relating to the Company or its Subsidiaries, other than requests for information not reasonably expected to be related to an Alternative Proposal, or (iii) any inquiry or request after the date hereof for discussion or negotiation regarding an Alternative Proposal, including in each case the identity of the person making any such Alternative Proposal or indication or inquiry and the material terms of any such Alternative Proposal or indication or inquiry (including copies of any document or correspondence evidencing such Alternative Proposal or inquiry). The Company shall keep Parent reasonably informed on a current basis (and in any event within 48 hours of the occurrence of any changes, developments, discussions or negotiations) of the status (including the material terms and conditions thereof and any material change thereto) of any such Alternative Proposal or indication or inquiry including furnishing copies of any written revised proposals. 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 negotiations concerning an Alternative Proposal. The Company shall not, and shall cause its 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 to Parent as required by this Section 5.3(e).
(f) Nothing contained in this Agreement shall prohibit the Company or take its Board of Directors (or the Special Committee) from (i) disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any other action regardingrequired disclosure to the Company’s stockholders if, any inquiryin the good faith judgment of such Board of Directors (or the Special Committee), expression after consultation and the receipt of interestadvice from its outside counsel, proposal or offer that constitutes, or failure to disclosure such information would reasonably be expected to lead toviolate its obligations under applicable Law; provided, however, that any such disclosure, other than a “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, shall be deemed to be a modification, amendment or withdrawal of the Recommendation for the purposes of Section 5.3(d) unless the Board of Directors of the Company (acting through the Special Committee if such committee still exists) in connection with such communication publicly reaffirms the Recommendation.
(g) As used in this Agreement, “Alternative Proposal” shall mean any inquiry, proposal or offer from any Person or group of Persons other than Parent or one of its Subsidiaries for (i) a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend acquisition of the Company (or publicly propose any Subsidiary or announce any intention Subsidiaries of the Company whose business constitutes 20% or desire to agree tomore of the net revenues, accept, approve, endorse net income or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each assets of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activitiesSubsidiaries, discussions taken as a whole) or negotiations with any Persons conducted prior to or on (ii) the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or acquisition in any other capacitymanner, takes any action that directly or indirectly, of over 20% of the equity securities, net revenue, net income or consolidated assets of the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to takeand its Subsidiaries, then in each case other than the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1Merger.
Appears in 2 contracts
Sources: Merger Agreement (Leever Daniel H), Merger Agreement (Court Square Capital Partners II LP)
No Solicitation. From and after The Stockholder hereby agrees, in the Agreement Date until the Closing capacity of stockholder or termination of this Agreement pursuant to Article VIIIotherwise, that neither the Company Stockholder nor any of its Subsidiaries nor subsidiaries or affiliates shall (and the Stockholder shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any Person or group (other than Parent, any of its affiliates or representatives) concerning any Takeover Proposal or take any other action which the Company Shareholders would be prohibited from taking under Sections 5.2 and 5.3(a) of the Merger Agreement. The Stockholder will, nor and will any of them authorize or permit any of their cause its subsidiaries, affiliates and the respective officers, directors, affiliatesemployees, shareholders or employees or any representatives, investment bankerbankers, attorney or attorneys, accountants and other advisor or representative retained by any of them (all agents of the foregoing collectively being the “Company Representatives”) Stockholder and its subsidiaries and affiliates to, directly or indirectly, (i) solicitimmediately cease any existing activities, initiate, seek, entertain, encourage, facilitate, support discussion or induce the making, submission or announcement negotiations with any parties conducted heretofore with respect to any possibility of any inquiry, expression consideration of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition making a Takeover Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to immediately request that all confidential information furnished on behalf of the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information Stockholder with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably thereto be expected to lead to, an Acquisition Proposal, returned and (iii) agree topromptly (and in any event within one (1) business day) notify Parent in writing if any inquiries or proposals are received by, acceptany information is requested from, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating negotiations or otherwise relating discussions are sought to be initiated or continued with the Stockholder in connection with any Acquisition ProposalTakeover Proposal including the identity of the Person and its affiliates making such proposal, inquiry or (v) submit offer and any Acquisition Proposal to the vote information requested from it or of any shareholders of Company negotiations or any Subsidiary. Each discussions being sought to be initiated with it, and shall furnish to Parent a written summary of the Company material terms and its Subsidiaries will immediately cease conditions of any such proposal, inquiry or offer. The Stockholder agrees that it shall keep Parent fully informed promptly of any developments in the status and cause to be terminated terms of any and all existing activities, discussions or negotiations with any Persons conducted prior to or on of the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1foregoing.
Appears in 2 contracts
Sources: Primary Voting Agreement (Miltope Group Inc), Secondary Voting Agreement (Miltope Group Inc)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII(a) Target shall not, neither the Company nor shall it permit any of its Subsidiaries nor any of the Company Shareholders willto, nor will any of them shall it authorize or permit any of their respective officersaffiliate, directorsagent, affiliatespartner, shareholders officer, director or employees employee of, or any investment banker, attorney or other advisor or representative retained by of, Target or any of them (all of the foregoing collectively being the “Company Representatives”) its Subsidiaries to, directly or indirectly, (i) solicit, solicit or initiate, seekor encourage any inquiries regarding or the submission of, entertainany Takeover Proposal (including, encouragewithout limitation, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, to Target's stockholders) or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public information with respect to, or take any other action regarding, to facilitate the making of any inquiry, expression of interest, proposal or offer that constitutes, or would may reasonably be expected to lead to, any such Takeover Proposal; PROVIDED, if in the opinion of the Board of Directors, after consultation with outside legal counsel, such failure to act would be inconsistent with its fiduciary duties to Target's stockholders under applicable law, Target may, in response to an Acquisition unsolicited Takeover Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire and subject to agree to, accept, approve, endorse or recommend) any Acquisition Proposalcompliance with Section 6.03(c), (ivA) enter into furnish information with respect to Target to any letter Person pursuant to an executed, customary confidentiality and "standstill" agreement and (B) participate in negotiations regarding such Takeover Proposal. Without limiting the foregoing, it is understood that any violation of intent the restrictions set forth in the preceding sentence by any director or officer of Target or any other Contract contemplating of its Subsidiaries (each a "COVERED PERSON"), whether or otherwise relating not such Person is purporting to act on behalf of Target or any Acquisition Proposalof its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 6.03(a) by Target; PROVIDED that it is understood that this Section 6.03(a) shall not be deemed to have violated if in response to an unsolicited inquiry, a Covered Person states solely that he or (v) submit any Acquisition Proposal she is subject to the vote terms of any shareholders of Company or any Subsidiarythis Agreement. Each of the Company and its Subsidiaries will All Covered Persons shall immediately cease and cause to be terminated any and all existing activities, discussions or and negotiations with any Persons parties conducted prior heretofore with respect to, or that could reasonably be expected to lead to, any of the foregoing.
(b) Neither the Board of Directors of Target nor any committee thereof shall (i) withdraw or on modify, or propose to withdraw or, in a manner adverse to Acq Corp, modify the Agreement Date approval or recommendation by such Board of Directors or any such committee of this Agreement, the Merger, or the Voting Agreement, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal or (iii) enter into any agreement with respect to any Acquisition Takeover Proposal. If any Company RepresentativeNotwithstanding the foregoing, whether in his or her capacity as such or in any other capacitythe Board of Directors, takes any action that prior to the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes approval of this Agreement or the Merger (including as the same may be modified hereafter) by the holders of at least two-thirds of the outstanding shares of Common Stock, to have breached the extent required by the fiduciary duties to Target's shareholders under applicable Law, after consulta- tion with outside legal counsel, may, subject to the terms of this and the following sentences of this Section 6.16.03(b), withdraw or modify its approval or recommendation of this Agreement, the Merger or the Voting Agreement, approve or recommend a Competitive Proposal, or enter into an agreement with respect to a Competitive Proposal, in each case at any time after 12:00 noon, Los Angeles time, on the tenth day following Acq Corp's receipt of written notice (a "NOTICE OF COMPETITIVE PROPOSAL") advising Acq Corp that the Board of Directors has received a Competitive Proposal, specifying the material terms and conditions of such Competitive Proposal and identifying the Person making such Competitive Proposal. Acq Corp shall have the opportunity, until the end of the tenth day after it receives a Notice of Competitive Proposal, to make an offer that the Board of Directors of Target must consider in good faith, after consultation with its financial advisors, to determine if it is at least as favorable, from a financial point of view, to the shareholders of Target as the Competitive Proposal. In addition, if Target enters into an agreement with respect to any Takeover Proposal, it shall concurrently with entering into such agreement pay, or cause to be paid, to Acq Corp the Expenses and the Termination Fee.
(c) In addition to the obligations of Target set forth in paragraph (b), Target shall advise Acq Corp promptly of any request for information or of any Takeover Proposal, or any proposal with respect to any Takeover Proposal, the material terms and conditions of such request or Takeover Proposal, and the identity of the Person making any such Takeover Proposal or inquiry. Target will keep Acq Corp fully informed of the status and details (including amendments or proposed amendments) of any such request, Takeover Proposal or inquiry.
Appears in 2 contracts
Sources: Merger Agreement (Harveys Casino Resorts), Merger Agreement (Harveys Acquisition Corp)
No Solicitation. From and after the Agreement Date until the Closing or termination (a) Except as set forth in Section 6.8(b), none of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders willshall, nor will any and each of them authorize or permit any of their shall cause its respective officers, directors, affiliatesemployees, shareholders or employees or any agents, investment bankerbankers, attorney or financial advisors, attorneys, accountants and other advisor or representative retained by any of them representatives (all of the foregoing collectively being the each a “Company RepresentativesRepresentative”) not to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertain, encourage, facilitate, support knowingly facilitate (including by way of providing information) or induce the making, submission or announcement of any inquiry, expression of interestproposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that constitutes, or would is reasonably be expected likely to lead to, an to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) any non-public confidential or nonpublic information with respect to, to or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead toin connection with, an Acquisition Proposal, (iii) agree to, accept, approve, endorse take any other action to facilitate any inquiries or recommend (the making of any proposal that constitutes or publicly propose or announce any intention or desire may reasonably be expected to agree to, accept, approve, endorse or recommend) any lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any letter of intent or any other Contract agreement contemplating or otherwise relating to any Acquisition ProposalTransaction or Acquisition Proposal (other than any confidentiality agreement required by Section 6.8(b)), (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vvii) submit propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.8(a), if Company or any of its Representatives receives an unsolicited bona fide written Acquisition Proposal that did not result from or arise in connection with a breach of this Section 6.8 by any Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) at any time prior to the Shareholders Meeting that the Board of Directors of Company has determined, in its good faith judgment (after consultation with Company’s financial advisors and outside legal counsel) to constitute or to be reasonably likely to result in a Superior Proposal, Company and its Representatives may take any action described in Section 6.8(a)(ii) above to the extent that the Board of Directors of Company has determined, in its good faith judgment (after consultation with Company’s outside legal counsel), that the failure to take such action would cause it to violate its fiduciary duties under applicable Law; provided, that, prior to taking any such action, Company has obtained from such Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) an executed confidentiality agreement containing terms substantially similar to, and no less favorable to Company than, the terms of the Confidentiality Agreement.
(c) As promptly as practicable (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Company shall advise Purchaser in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, shall promptly provide to Purchaser a written summary of the material terms of such Acquisition Proposal, request or inquiry (including the identity of the Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) making the Acquisition Proposal and shall keep Purchaser promptly apprised of any related developments, discussions and negotiations (including providing Purchaser with a copy of all material documentation and correspondence relating thereto) on a current basis. Company agrees that it shall simultaneously provide to Purchaser any public information concerning Company that may be provided (pursuant to Section 6.8(b)) to any other Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) in connection with any Acquisition Proposal which has not previously been provided to Purchaser.
(d) Notwithstanding anything herein to the vote contrary, at any time prior to the Shareholders’ Meeting, the Board of any shareholders Directors of Company or any Subsidiary. Each may withdraw its recommendation of the Merger Agreement, thereby resulting in a Change in the Company Recommendation, if and only if (x) from and after the date hereof, Company has complied with Sections 6.3 and 6.8, and (y) the Board of Directors of Company has determined in good faith, after consultation with outside counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable Law; provided, that the Board of Directors of Company may not effect a Change in the Company Recommendation unless:
(1) Company shall have received an unsolicited bona fide written Acquisition Proposal and the Board of Directors of Company shall have concluded in good faith (after consultation with Company’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by Purchaser;
(2) Company shall have provided prior written notice to Purchaser at least five (5) Business Days in advance (the “Notice Period”) of taking such action, which notice shall advise Purchaser that the Board of Directors of Company has received a Superior Proposal, specify the material terms and conditions of such Superior Proposal (including the identity of the Person or “group” (as such term is defined in Section 13(d) under the Exchange Act) making the Superior Proposal);
(3) during the Notice Period, Company shall, and shall cause its financial advisors and outside counsel to, negotiate with Purchaser in good faith (to the extent Purchaser desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(4) the Board of Directors of Company shall have concluded in good faith (after consultation with Company’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Purchaser, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal and such revisions are material, Company shall deliver a new written notice to Purchaser and shall again comply with the requirements of this Section 6.8(d) with respect to such new written notice, except that the new Notice Period shall be two (2) Business Days. In the event the Board of Directors of Company does not make the determination referred to in clause (4) of this paragraph and thereafter seeks to effect a Change in the Company Recommendation, the procedures referred to above shall apply anew and shall also apply to any subsequent Change in the Company Recommendation.
(e) Company and its Subsidiaries will shall, and shall cause their respective Representatives to, (i) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If ; (ii) request the prompt return or destruction of all confidential information previously furnished in connection therewith; and (iii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or Company Representativeor any of its Subsidiaries or Representative is a party, whether and enforce the provisions of any such agreement.
(f) Nothing contained in his this Agreement shall prevent Company or her capacity its Board of Directors from issuing as “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal or from making any disclosure to Company shareholders if Company’s Board of Directors (after consultation with outside counsel) concludes that its failure to do so would cause it to violate its fiduciary duties under applicable Law; provided, that such Rules will in no way eliminate or in any other capacity, takes modify the effect that any action that the Company is obligated pursuant to such Rules would otherwise have under this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of Agreement.
(g) As used in this Agreement to have breached this Section 6.1.Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Huntington Bancshares Inc/Md), Merger Agreement (Camco Financial Corp)
No Solicitation. From 6.10.1. Cheviot Financial shall not, and after shall cause the Agreement Date until Cheviot Financial Subsidiaries and the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliatesemployees, shareholders or employees or any investment bankerbankers, attorney or financial advisors, attorneys, accountants, consultants, affiliates and other advisor or representative retained by any of them agents (all of the foregoing collectively being collectively, the “Company Cheviot Financial Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate, seek, entertain, induce or knowingly encourage, facilitateor take any action to facilitate the making of, support or induce the making, submission or announcement of any inquiry, expression of interest, offer or proposal or offer that which constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, ; (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingregarding any Acquisition Proposal or furnish, or deliver or make available otherwise afford access, to any Person (other than MainSource) any non-public information or data with respect to, to Cheviot Financial or take any other action regarding, any inquiry, expression of interest, proposal the Cheviot Financial Subsidiaries or offer that constitutes, or would reasonably be expected otherwise relating to lead to, an Acquisition Proposal, ; (iii) agree torelease any Person from, acceptwaive any provisions of, approve, endorse or recommend (fail to enforce any confidentiality agreement or publicly propose standstill agreement to which Cheviot Financial is a party; or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any agreement, agreement in principle or letter of intent or any other Contract contemplating or otherwise relating with respect to any Acquisition Proposal, Proposal or (v) submit approve or resolve to approve any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiaryagreement, agreement in principle or letter of intent relating to an Acquisition Proposal. Each Any violation of the Company foregoing restrictions by Cheviot Financial or any Cheviot Financial Representative, whether or not such Representative is so authorized and its whether or not such Cheviot Financial Representative is purporting to act on behalf of Cheviot Financial or otherwise, shall be deemed to be a breach of this Agreement by Cheviot Financial. Cheviot Financial and Cheviot Financial Subsidiaries will shall, and shall cause each of the Cheviot Financial Representatives to, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or negotiations negotiations, and communications with any Persons conducted prior to or on the Agreement Date with respect to any existing or potential Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
Appears in 2 contracts
Sources: Merger Agreement (Cheviot Financial Corp.), Merger Agreement (Mainsource Financial Group)
No Solicitation. (a) From and after the date of this Agreement Date until the Closing or Effective Time or, if earlier, the termination of this Agreement, subject to Section 6.02(b), the Company shall not and shall cause its Subsidiaries not to, and the Company shall direct its and their Representatives not to, and the Company shall not permit its officers, directors or Principal Stockholders to, directly or indirectly: (i) initiate, solicit, knowingly encourage or facilitate (including by way of providing information) the submission or making of any requests, inquiries, proposals or offers that constitute or may reasonably be expected to lead to, any Acquisition Proposal or engage in any discussions or negotiations with respect thereto or otherwise cooperate with or assist or participate in, or facilitate, any such requests, proposals, offers, discussions or negotiations or furnish to any Person any material nonpublic information in furtherance of, any Acquisition Proposal or (ii) except as expressly permitted by Section 6.02(e), approve or recommend, or publicly propose to approve or recommend, an Acquisition Proposal, or enter into any confidentiality agreement, merger agreement, letter of intent, agreement in principle, purchase agreement, option agreement or other agreement providing for or relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement as set forth in, and if permitted pursuant to, the provisions of Section 6.02(b)) or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the Transactions or breach its obligations hereunder or propose or agree to do any of the foregoing. The Company shall, shall cause its Subsidiaries to, and shall use reasonable best efforts to cause its and their Representatives to immediately cease and terminate, any solicitation, knowing encouragement, discussion or negotiation or cooperation with, or assistance or participation in, or facilitation of any such inquiries, proposals, discussions or negotiations with, any Persons conducted heretofore by the Company, its Subsidiaries and its and their Representatives with respect to any Acquisition Proposal and promptly request and instruct the prompt return or destruction of all confidential information previously furnished to any such Person, and the Company shall take all reasonably necessary actions to secure its rights and ensure the performance of any such Person’s obligations under any applicable confidentiality agreement. To the extent consistent with its fiduciary duties, the Company shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between the Company and any Person (other than ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC and its Affiliates in connection with this Agreement), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement. The Company shall ensure that its Representatives are aware of the provisions of this Section 6.02, and any violation of the restrictions contained in this Section 6.02 by its Board of Directors (including any committee thereof) or its Representatives shall be deemed to be a breach of this Section 6.02 by the Company.
(b) Notwithstanding anything to the contrary contained in Section 6.02(a) or any other provisions of this Agreement, if at any time following the date of this Agreement and prior to obtaining the Stockholder Approval, (i) the Company has received an unsolicited written Acquisition Proposal from a third party that the Board of Directors determines in good faith to be bona fide, (ii) such Acquisition Proposal did not result from a breach of this Section 6.02, (iii) the Board of Directors determines in good faith, after consultation with its financial advisors and outside legal counsel, that (x) such Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal and (y) the failure to take the actions described in clauses (A) and (B) below would be inconsistent with the Board of Directors’ fiduciary duties under Delaware Law, then the Company may (A) enter into an Acceptable Confidentiality Agreement with the Person making such Acquisition Proposal and furnish information with respect to the Company and its Subsidiaries pursuant to Article VIIIthe Acceptable Confidentiality Agreement with the Company to the Person making the Acquisition Proposal and (B) participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal; provided, that the Company shall give written notice to Parent after any such determination by the Board of Directors and before taking any of the actions described in the foregoing clauses (A) and (B). The Company shall concurrently provide Parent with copies of any information or materials provided or made available to such other Person which was not previously made available to Parent.
(c) The Company shall promptly (and, in any event, within 24 hours) notify Parent in writing in the event that the Company or any of its Representatives receives any Acquisition Proposal, or any request for non-public information concerning the Company or any of its Subsidiaries related to, or that could reasonably be expected to be related to or from any Person or group who could reasonably be expected to make any Acquisition Proposal, or any request for discussions or negotiations related to any Acquisition Proposal (including any material changes related to the foregoing), indicating, in connection with such notice, the identity of the Person making such Acquisition Proposal or request and the material terms and conditions thereof. The Company shall keep Parent reasonably informed on a current basis (within no more than 24 hours) of any material developments in the status and terms of any such Acquisition Proposal or request, including whether such Acquisition Proposal or request has been withdrawn or rejected and any material changes to the terms thereof.
(d) The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person relating to a possible Acquisition Proposal subsequent to the date of this Agreement except for an Acceptable Confidentiality Agreement as permitted or required pursuant to this Section 6.02, and neither the Company nor any of its Subsidiaries nor shall be party to any agreement that prohibits the Company from providing to Parent any information provided or made available to any other Person pursuant to an Acceptable Confidentiality Agreement.
(e) 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 Section 8.01, and except as otherwise provided for in the immediately following sentence, neither the Board of Directors of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, committee thereof shall (i) solicitwithdraw, initiatequalify or modify or publicly propose to withdraw, seek, entertain, encourage, facilitate, support qualify or induce modify in any manner the making, submission or announcement Recommendation (a “Change of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition ProposalRecommendation”), (ii) enter into, participate in, maintain approve or continue any communications (except solely recommend or propose publicly to provide written notice as to the existence of these provisions) approve or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, recommend an Acquisition Proposal, Proposal or (iii) agree toapprove or recommend, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse approve or recommend) any Acquisition Proposal, (iv) enter into or execute any letter of intent intent, agreement in principle, acquisition or any other Contract contemplating or otherwise agreement relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement). The Board of Directors may at any time prior to the time Stockholder Approval has been obtained, if it determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to take such action would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under Delaware Law, (x) make a Change of Recommendation, (y) if the Company receives an unsolicited Acquisition Proposal after the date hereof which the Board of Directors concludes in good faith, after consultation with outside legal 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, approve or recommend such Superior Proposal, or and/or (vz) submit any Acquisition Proposal to only in the vote of any shareholders of Company or any Subsidiary. Each case of the Company and its Subsidiaries will immediately cease and cause foregoing clause (y), terminate this Agreement, pursuant to be terminated any and all existing activitiesSection 8.01(f) after or concurrently with payment of the Break-up Fee in accordance with Section 8.03(e), discussions or negotiations with any Persons conducted prior to or on the Agreement Date enter into a definitive agreement with respect to any Acquisition such Superior Proposal. If any Company Representative; provided, whether in his or her capacity as such or in any other capacityhowever, takes any action that the Company is obligated Board of Directors may not make a Change of Recommendation pursuant to the foregoing clause (x) or approve or recommend any Superior Proposal pursuant to the foregoing clause (y) or terminate this Agreement pursuant to the foregoing clause (z) unless the Company has complied with its obligations under this Section 6.1 to cause such Company Representative not to take, then 6.02 and:
i) the Company shall be deemed for all purposes have provided prior written notice to Parent and Sub of its intention to take any action contemplated in clause (x), (y) or (z) of this Agreement Section 6.02(e) at least four Business Days in advance of taking such action (the “Notice Period”), which notice shall specify in reasonable detail (x) the material terms and conditions of any such Superior Proposal, if applicable, (including the identity of the Person making such Superior Proposal), and shall have contemporaneously provided a copy of the then-current form of all relevant transaction agreements relating to have breached this Section 6.1.any such Superior Proposal, if applicable, or if no such agreement exists a written summary of the material terms and conditions of such Superior Proposal (the “Alternative Acquisition Agreement”) and (y) if such Change of Recommendation is not being made as a result of a Superior Proposal, the reasons for such action;
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Emergency Medical Services CORP)
No Solicitation. From and after During the Agreement Date until the Pre-Closing or termination of this Agreement pursuant to Article VIIIPeriod, neither the Company nor any of and its Subsidiaries nor any of shall not, and the Company Shareholders will, nor will any of them authorize or permit any of and its Subsidiaries shall use reasonable efforts to cause their respective directors, officers, directors, affiliates, shareholders or employees or any investment banker, attorney or and other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) agents not to, directly or indirectly, (ia) solicit, initiate, seek, entertain, encourage, facilitate, support initiate or induce the making, submission or announcement of knowingly encourage any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iib) enter into, continue or otherwise participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person person any non-non public information with respect tofor the purpose of encouraging or facilitating, any Acquisition Proposal or (c) otherwise cooperate in any way with, or take assist or participate in, facilitate or encourage, any effort or attempt by any other action regardingperson or entity to do or seek any of the foregoing. The Company shall promptly inform the Buyer of the identity of any person making an Acquisition Proposal during the Pre-Closing Period as well as the nature and material terms of any such Acquisition Proposal. For purposes of this Agreement, “Acquisition Proposal” means (i) any inquiry, expression of interest, proposal or offer that constitutesfor a merger, consolidation, dissolution, sale of substantial assets outside the ordinary course of business, stock purchase, recapitalization, share exchange or would reasonably be expected to lead toother business combination involving the Company or any of its Subsidiaries, an Acquisition Proposal, (ii) any proposal for the issuance by the Company or any of its Subsidiaries of over 20% of its equity securities or (iii) agree toany proposal or offer to acquire in any manner, acceptdirectly or indirectly, approve, endorse over 20% of the equity securities or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each total assets of the Company and its Subsidiaries will Subsidiaries, taken as a whole, in each case other than the transactions contemplated by this Agreement. The Company shall, and shall cause its representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons persons or entities (other than the Buyer and the Transitory Subsidiary) conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that of the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.foregoing
Appears in 2 contracts
Sources: Merger Agreement (Centessa Pharmaceuticals LTD), Merger Agreement (Cornerstone Therapeutics Inc)
No Solicitation. From 6.10.1 FENB shall not, and after the Agreement Date until the Closing shall not permit or termination of this Agreement pursuant to Article VIII, neither the Company nor authorize any of its Subsidiaries nor or Representatives of FENB or any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) toits Subsidiaries, directly or indirectly, to (i) solicit, initiate, seekendorse, entertain, encourage, facilitate, support encourage or induce the making, submission or announcement of facilitate any inquiry, expression of interestproposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that constitutes, or would is reasonably be expected likely to lead to, an to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public information or data with respect to, or take otherwise cooperate in any other action regardingway with, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) approve, recommend, agree to, to or accept, or propose to approve, endorse recommend, agree to or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, Proposal or (iv) enter into resolve, propose or agree to do any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company foregoing. FENB shall, and shall cause each of the Subsidiaries and the Representatives of FENB and its Subsidiaries will to, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons Person conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal, and (B) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which it or any of its Affiliates or Representatives is a party with respect to any Acquisition Proposal, and shall enforce the provisions of any such agreement. If Notwithstanding the foregoing, if at any Company Representativetime following the Agreement Date and prior to obtaining FENB Shareholder Approval, (1) FENB receives a written Acquisition Proposal that the FENB Board believes in good faith to be bona fide, (2) such Acquisition Proposal was unsolicited and did not otherwise result from a breach of this Section 6.10.1, (3) the FENB Board determines in good faith that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal and (4) the FENB Board determines in good faith (and based on the advice of outside counsel) that the failure to take the actions referred to in clause (x) or (y) below would constitute a breach of its fiduciary duties to the shareholders of FENB under applicable Law, then FENB may (x) furnish information with respect to FENB and its Subsidiaries to the Person making such Acquisition Proposal pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to FENB than, those set forth in the Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have been previously provided to CUNB or shall be provided to CUNB prior to or concurrently with the time it is provided to such Person and (y) participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing provisos or engaging in any negotiations, FENB shall have entered into a confidentiality agreement with such third party on terms no less favorable to FENB than the Confidentiality Agreement.
6.10.2 Neither the FENB Board nor any committee thereof shall: (i) effectuate an Adverse Recommendation Change; (ii) cause or permit FENB to enter into an Alternate Acquisition Agreement; or (iii) resolve, agree or propose to take any such actions. Notwithstanding the foregoing, in the event FENB receives an unsolicited bona fide Acquisition Proposal and the FENB Board concludes in good faith that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, the FENB Board shall nevertheless cause the FENB Shareholders Meeting to be held in accordance with Section 8.2.1 herein, but may, to the extent that the FENB Board concludes in good faith (and based on the advice of outside counsel) that failure to take such action would result in a violation of its fiduciary duties under applicable Law, submit this Agreement to its shareholders without recommendation (although the resolutions approving this Agreement as of the Agreement Date may not be rescinded or amended) in which event the FENB Board may communicate the basis for its lack of a recommendation to the shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by Law; provided, however, that FENB may not submit this Agreement to its shareholders without recommendation unless (1) FENB promptly notifies CUNB in writing at least five (5) Business Days before taking that action of its intention to do so, and specifying the reasons therefor, including the terms and conditions of, and the identity of any Person making, such Superior Proposal, and contemporaneously furnishing a copy of the relevant Alternative Acquisition Agreement and any other relevant transaction documents (it being understood and agreed that any amendment to the financial terms or any amendment to any other material term of such Superior Proposal shall require a new written notice by FENB and a new five (5) Business Day period) and (2) prior to the expiration of such five (5) Business Day period, CUNB does not make a proposal to adjust the terms and conditions of this Agreement that the FENB Board determines in good faith (after consultation with outside counsel and its financial advisor) after giving effect to, among other things, the payment of the Termination Fee set forth in Section 11.3, that such action is no longer required by its fiduciary duties to the shareholders of FENB under applicable Law. During the five (5) Business Day period prior to its effecting an Adverse Recommendation Change as referred to above, FENB shall, and shall cause its financial and legal advisors to, negotiate with CUNB in good faith (to the extent CUNB seeks to negotiate) regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by CUNB.
6.10.3 In addition to the obligations of FENB set forth in Section 6.10.1 and Section 6.10.2, FENB promptly, and in any event within 24 hours of receipt, shall advise CUNB in writing in the event FENB or any of its Subsidiaries or Representatives receives (i) any Acquisition Proposal or indication by any Person that it is considering making an Acquisition Proposal, (ii) any request for information, discussion or negotiation that is reasonably likely to lead to or that contemplates an Acquisition Proposal or (iii) any inquiry, proposal or offer that is reasonably likely to lead to an Acquisition Proposal, in each case together with the terms and conditions of such Acquisition Proposal (to the extent such terms and conditions are known to FENB), request, inquiry, proposal or offer and the identity of the Person making any such Acquisition Proposal, request, inquiry, proposal or offer, and shall furnish CUNB with a copy of such Acquisition Proposal (or, where such Acquisition Proposal is not in writing, with a description of the material terms and conditions thereof). FENB shall keep CUNB informed (orally and in writing) in all material respects on a timely basis of the status and details (including, within 24 hours after the occurrence of any amendment, modification, discussion or negotiation) of any such Acquisition Proposal, request, inquiry, proposal or offer, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting any of the foregoing, FENB shall promptly (and in any event within 24 hours) notify CUNB orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 6.10.1 or Section 6.10.2 and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
6.10.4 FENB agrees that any violation of the restrictions set forth in this Section 6.10 by any Representative of FENB or any of its Subsidiaries, whether in his or her capacity as not such Person is purporting to act on behalf of FENB or in any other capacityof its Subsidiaries or otherwise, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes to be a material breach of this Agreement by FENB.
6.10.5 FENB shall not, and shall cause its Subsidiaries not to, enter into any agreement with any Person subsequent to have breached the Agreement Date that (i) would restrict FENB’s ability to comply with any of the terms of this Section 6.16.10; or (ii) relates to any Acquisition Proposal that would materially impair FENB’s ability to consummate the transactions contemplated by this Agreement.
6.10.6 FENB shall not take any action to exempt any Person (other than CUNB, CUB and their respective Affiliates) from the restrictions on “business combinations” or any similar provision contained in any Takeover Law or otherwise cause such restrictions not to apply, or agree to do any of the foregoing.
6.10.7 FENB agrees that, prior to the termination of this Agreement, it shall not submit to the vote of its shareholders any Acquisition Proposal (whether or not a Superior Proposal) or propose to do so.
Appears in 2 contracts
Sources: Merger Agreement (CU Bancorp), Merger Agreement (CU Bancorp)
No Solicitation. From and after Except as expressly permitted by this Section 5.02, from the date of this Agreement Date until the Closing earlier of the Effective Time or the termination of this Agreement pursuant to Article VIIIin accordance with its terms, neither the Company nor any of shall not, and shall cause its Subsidiaries nor any of the Company Shareholders willand its and their directors and officers not to, nor will any of them authorize or permit any of their respective officersand shall use its reasonable best efforts to cause its and its Subsidiaries’ employees, directorsaccountants, affiliatesconsultants, shareholders or employees or any investment bankerlegal counsel, attorney or financial advisors and agents and other advisor or representative retained by any of them representatives (all of the foregoing collectively being the collectively, with such directors and officers referred to above, “Company Representatives”) not to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertaininitiate or knowingly facilitate or knowingly encourage (including by way of furnishing any non-public information) any inquiries regarding, encourageor the making of, facilitate, support or induce the making, any submission or announcement of any inquiry, expression of interest, a proposal or offer that constitutes, or would reasonably be expected to lead to, an any Acquisition Proposal, (ii) enter into, participate engage in, maintain continue or continue otherwise participate in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any other Person any non-public information in connection with respect to, or take any other action regardingfor the purpose of encouraging or facilitating, any inquiry, expression of interest, Acquisition Proposal or any inquiry or proposal or offer that constitutes, or would could reasonably be expected to lead to, to an Acquisition Proposal, (iii) agree to, accept, approve, endorse endorse, recommend, submit to stockholders or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) declare advisable any Acquisition Proposal, (iv) enter into any letter of intent intent, term sheet, memorandum of understanding, acquisition agreement, merger agreement, option agreement or other similar agreement (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”) relating to any other Acquisition Proposal or modify, amend or waive any provision in any Contract contemplating or otherwise relating to any an Acquisition Proposal, Proposal or (v) submit any Acquisition Proposal to release or terminate or permit the vote release of any shareholders Person from, or termination of, or waive or modify or permit the waiver or modification of any provision of, or fail to enforce or cause not to be enforced, any confidentiality, standstill or similar agreement to which the Company or any Subsidiary. Each of its Subsidiaries is a party except to the extent that the failure to so release, terminate, waive, modify or fail to enforce would be inconsistent with the fiduciary duties of the Company Board under Applicable Law. The Company shall, and shall cause its Subsidiaries and its Subsidiaries will and their directors and officers to, and shall use its reasonable best efforts to cause its and their respective Representatives (other than its and their directors and officers) to, immediately cease and cause to be terminated any all discussions and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date Person that may be ongoing with respect to any Acquisition Proposal. If any The Company Representative, whether shall promptly (but in his or her capacity as such or in any other capacity, takes any action no event later than forty-eight (48) hours following the execution of the Agreement) demand that each Person that has heretofore executed a confidentiality agreement with the Company is obligated pursuant with respect to this Section 6.1 consideration of a possible Acquisition Proposal at anytime after January 1, 2013 (other than agreements that have expired by their terms) immediately return or destroy all confidential information heretofore furnished by the Company, any of its Subsidiaries or any of its Representatives to cause such Company Representative not to takePerson, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1its Subsidiaries or its Representatives.
Appears in 2 contracts
Sources: Merger Agreement (Entegris Inc), Merger Agreement (Atmi Inc)
No Solicitation. From and after the date of this Agreement Date until the Closing --------------- earlier to occur of the Effective Time or termination of this Agreement pursuant to Article VIIIits terms, neither the Company nor any of its Subsidiaries nor any of will not, and the Company Shareholders willwill instruct its directors, nor will any of them authorize or permit any of their respective officers, directorsemployees, affiliatesrepresentatives, shareholders or employees or any investment bankerbankers, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) agents and affiliates not to, directly or indirectly, (ia) solicit, initiate, seek, entertain, encourage, facilitate, support solicit or induce the making, encourage submission or announcement of any inquiry"Acquisition Proposal" (as defined herein) by any person, expression of interestentity or group (other than Parent and its affiliates, proposal agents, and representatives) or offer that constitutes(b) participate in any discussions or negotiations with, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person disclose any non-public information with respect concerning the Company to, or take afford access to the properties, books, or records of the Company, or otherwise assist or facilitate, or enter into any other action regardingagreement or understanding with, any inquiryperson, expression entity or group (other than Parent and its affiliates, agents, and representatives) in connection with any Acquisition Proposal with respect to the Company. For purposes of interestthis Agreement, an "Acquisition Proposal" means any proposal or offer that constitutes, or would reasonably be expected relating to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommenda) any Acquisition Proposalmerger, consolidation, sale or license of substantial assets or similar transactions involving the Company (ivother than sales or licenses of assets or inventory in the ordinary course of business or as permitted by this Agreement) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (vb) submit any Acquisition Proposal to sales by the vote Company of any shareholders Company Capital Stock (including, without limitation, by way of a tender offer or an exchange offer). The Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons parties conducted prior to or on the Agreement Date heretofore with respect to any of the foregoing. The Company will within one business day of receipt (a) notify Parent if, after the date of this Agreement, it receives any proposal or inquiry or request for information in connection with an Acquisition Proposal or potential Acquisition Proposal and (b) notify Parent of the significant terms and conditions of any such Acquisition Proposal including the identity of the party making an Acquisition Proposal. If any Company RepresentativeIn addition, whether in his from and after the date of this Agreement, until the earlier to occur of the Effective Time or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes termination of this Agreement pursuant to have breached this Section 6.1its terms, the Company will not, and will instruct its directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal made by any person, entity or group (other than Parent).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Seagate Technology Inc), Agreement and Plan of Reorganization (Seagate Technology Malaysia Holding Co Cayman Islands)
No Solicitation. From and after (a) During the period from the Agreement Date and continuing until the Closing or earlier of the termination of this Agreement pursuant to Article VIIIand the Closing, neither Seller will not, and Seller will not authorize or permit the Company nor or any of its Subsidiaries nor any of or the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees Company’s Representatives or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Subsidiary to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiarysecurityholder. Each of the The Company will, and will cause its Subsidiaries will Representatives and each Subsidiary to, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal and (B) immediately revoke or withdraw access of any Person (other than Buyer and its Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company in connection with an Acquisition Proposal and request from each Person (other than Buyer and its Representatives) the prompt return or destruction of all non-public information with respect to the Company previously provided to such Person in connection with an Acquisition Proposal. If any Company Representativeof the Company’s Representatives, whether in his his, her or her its capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 not to cause authorize or permit such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) Seller shall immediately (but in any event, within 24 hours) notify Buyer orally and in writing after receipt by Seller or the Company (or, to the knowledge of Seller, by any of the Seller’s or the Company’s Representatives), of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for non-public information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons considering making or that has made an Acquisition Proposal other than Buyer and its Representatives. Such notice shall describe (A) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (B) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request. Seller shall keep Buyer informed on a reasonably current basis of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Buyer a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. Seller shall provide Buyer with 48 hours prior notice (or such lesser prior notice as is provided to the members of the Seller’s Board of Directors) of any meeting of the Seller’s Board of Directors at which the Seller’s Board of Directors is reasonably expected to discuss any Acquisition Proposal.
(c) The Company and Seller agree to consent to the assignment to Buyer of the Pandora Media, Inc. Non-Competition Agreements with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇, respectively, dated October 7, 2015 (the “Non-Competition Agreements”) from each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Eventbrite, Inc.), Membership Interest Purchase Agreement (Pandora Media, Inc.)
No Solicitation. From (a) The Company shall not, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of shall cause its Subsidiaries nor any of the Company Shareholders willnot to, nor will any of them and shall not authorize or permit any of their respective its and its Subsidiaries’ directors, officers, directorsemployees, affiliatesadvisors and investment bankers (with respect to any Person, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the Persons are referred to herein as such Person’s “Company Representatives”) to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 6.03(b), (i) solicitconduct or engage in any discussions or negotiations with, initiatedisclose any non-public information relating to the Company or any of its Subsidiaries to, seekafford access to the business, entertainproperties, encourageassets, facilitatebooks or records of the Company or any of its Subsidiaries to, support or induce 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 makingCompany or any of its Subsidiaries or (B) approve any transaction under, submission or announcement any third party becoming an “interested stockholder” under, Section 203 of the DGCL, or (iii) 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 Agreement”). Subject to Section 6.03(b), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend a Takeover Proposal, fail to recommend against acceptance of any inquirytender offer or exchange offer for the shares of Company Stock within ten (10) Business Days after the commencement of such offer, expression or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of interestthe foregoing actions (any of the foregoing, proposal a “Company Adverse Recommendation Change”). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or offer knowingly permit any of its or their Representatives to continue, any and all existing activities or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use its reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that constituteswas furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information.
(b) Notwithstanding Section 6.03(a), prior to the receipt of the Requisite Company Vote, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.03(c) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Company Board believes in good faith constitutes or would reasonably be expected to lead to, an Acquisition result in a Superior Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely thereafter furnish to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any such third party non-public information with respect torelating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), or (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, and/or (iv) take any other action regardingthat any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law.
(c) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.03(b) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) of any Takeover Proposal, any inquiry, expression of interest, proposal or offer inquiry that constitutes, or would reasonably be expected to lead to, an Acquisition to a Takeover Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least forty-eight (48) hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Takeover Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company’s business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information.
(d) Except as set forth in this Section 6.03(d), the Company Board shall not make any Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of the Requisite Company Vote, the Company Board may make a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least five (5) Business Days (the “Notice Period”) before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received a Takeover Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) agree the Company shall, and shall cause its Subsidiaries to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire and shall use its reasonable best efforts to agree cause its and its Subsidiaries’ Representatives to, acceptduring the Notice Period, approve, endorse or recommend) any Acquisition negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company Board determines in good faith, after consulting with outside legal counsel, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes conditions of this Agreement to have breached this Section 6.1Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Real Goods Solar, Inc.), Merger Agreement (Real Goods Solar, Inc.)
No Solicitation. (a) The Company shall, and 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 or any of its Subsidiaries) shall immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal. From and after the Agreement Date until the Closing or termination date of this Agreement pursuant to Article VIIIthrough the Effective Time, neither the Company shall not, nor shall it permit any of its Subsidiaries nor any of the Company Shareholders willto, nor will any of them shall it authorize or permit any of their respective officers, its or its Subsidiaries' directors, affiliates, shareholders officers or employees or any investment banker, attorney financial advisor, attorney, accountant or other advisor or representative retained by it or any of them (all of the foregoing collectively being the “Company Representatives”) its Subsidiaries to, directly or indirectlyindirectly through another Person, (i) solicit, initiateinitiate or encourage (including by way of furnishing information or assistance), seek, entertain, encourage, facilitate, support or induce take any other action designed to facilitate or encourage any inquiries or the making, submission or announcement making of any inquiry, expression of interest, proposal or offer that constitutes, or would is reasonably be expected likely to lead to, an any Acquisition Proposal, (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingregarding any Acquisition Proposal or (iii) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. Any violation of the foregoing restrictions by any representative of the Company, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Agreement by the Company.
(i) Notwithstanding the foregoing, the Board of Directors of the Company shall be permitted, prior to obtaining the Company Stockholder Approval, to engage in discussions and negotiations with, or deliver provide any nonpublic information or make available to data to, any Person any non-public information in response to an unsolicited bona fide written Acquisition Proposal by such Person first made after the date of this Agreement which its Board of Directors concludes in good faith (after consultation with respect to, outside counsel and its financial advisor) constitutes or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead toto a Superior Proposal, if and only to the extent that the Board of Directors of the Company reasonably determines in good faith (after consultation with outside legal counsel) that it is required to do so in order to comply with its fiduciary duties under applicable law and subject to compliance with the other terms of this Section 6.2 and to first entering into a confidentiality agreement having provisions that are no less restrictive to such Person than those contained in the Confidentiality Agreement.
(ii) The Company shall notify Parent promptly (but 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, or has made, 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 and the material terms and conditions of any inquiries, proposals or offers (including a copy thereof if in writing and any related documentation or correspondence). The Company shall also promptly, and in any event within 24 hours, notify Parent, orally and in writing, if it enters into discussions or negotiations concerning any Acquisition Proposal or provides nonpublic information or data to any Person in accordance with this Section 6.2(b) and keep Parent informed of the status and terms of any such proposals, offers, discussions or negotiations on a current basis, including by providing a copy of all material documentation or correspondence relating thereto.
(iii) agree Nothing contained in this Section 6.2 shall prohibit the Company or its Subsidiaries from taking and disclosing to its shareholders a position as required by 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.
(c) The Company agrees that (i) it will and will cause its Subsidiaries, and its and their officers, directors, agents, representatives and advisors to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company cease immediately and its Subsidiaries will immediately cease and cause to be terminated terminate any and all existing activities, discussions or negotiations with any Persons third parties conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If , and (ii) it will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which it or any of its Subsidiaries is a party with respect to any Acquisition Proposal.
(d) Nothing in this Section 6.2 shall (x) permit the Company Representative, whether in his to terminate this Agreement or her capacity as such or in (y) affect any other capacity, takes any action that obligation of the Company is obligated pursuant to under this Section 6.1 to cause such Company Representative not to take, then the Agreement. The Company shall be deemed for all not submit to the vote of its shareholders any Acquisition Proposal other than the Merger.
(e) For purposes of this Agreement Agreement, the term "Acquisition Proposal" means any inquiry, proposal or offer, filing of any regulatory application or notice (whether in draft or final form) or disclosure of an intention to have breached do any of the foregoing from any Person relating to any (w) direct or indirect acquisition or purchase of a business that constitutes a substantial portion of the net revenues, net income or assets of the Company or any of its Subsidiaries, (x) direct or indirect acquisition or purchase of any class of equity securities representing 10% or more of the voting power of the Company or any of its Subsidiaries, (y) tender offer or exchange offer that if consummated would result in any Person beneficially owning 10% or more of the voting power of the Company, or (z) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries, in each case other than the transactions contemplated by this Section 6.1Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Alamosa Holdings Inc), Merger Agreement (Airgate PCS Inc /De/)
No Solicitation. (a) From and after the date of this Agreement Date until the Closing Effective Time or termination of this Agreement pursuant to Article VIIIVII, neither the Company nor any of Healthvision and its Subsidiaries nor any of the Company Shareholders willsubsidiaries will not, nor will any of them they authorize or permit any of their respective officers, directors, affiliates, shareholders affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support encourage or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition ProposalProposal (as hereinafter defined), (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person person any non-public information with respect to, or take any other action regarding, to facilitate any inquiry, expression inquiries or the making of interest, any proposal or offer that constitutes, or would reasonably be expected to lead to, constitutes an Acquisition Proposal, (iii) agree toengage in discussions with any person with respect to any Acquisition Proposal, acceptexcept as to the existence of these provisions, (iv) approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, Proposal or (ivv) enter into any letter of intent or similar document or any other Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company Healthvision and its Subsidiaries subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons parties conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If Without limiting the foregoing, it is understood that any Company Representativeviolation of the restrictions set forth in the preceding two sentences by any officer, whether in his director or her capacity as such employee of Healthvision or in any of its subsidiaries or any investment banker, attorney or other capacity, takes advisor or representative of Healthvision or any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company of its subsidiaries shall be deemed for all purposes to be a breach of this Agreement to have breached this Section 6.1.5.4
Appears in 2 contracts
Sources: Merger Agreement (Eclipsys Corp), Merger Agreement (Neoforma Com Inc)
No Solicitation. (a) From and after the date of this Agreement Date until the Closing Effective Time or the termination of this Agreement pursuant to in accordance with Article VIII, neither except as specifically permitted in Sections 6.03(d), 6.03(f) or 6.03(g)(ii), the Company nor any of its Subsidiaries nor any of the Company Shareholders willshall not, nor will any of them shall it authorize or permit any of its Subsidiaries or its or their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives to, directly or indirectly, : (i) solicit, initiateinitiate or knowingly encourage any inquiries, seek, entertain, encourage, facilitate, support offers or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer proposals that constitutesconstitute, or would are reasonably be expected likely to lead to, an any Acquisition Proposal, ; (ii) enter intoengage in discussions or negotiations with, participate in, maintain furnish or continue disclose any communications (except solely to provide written notice as information or data relating to the existence Company or any of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect its Subsidiaries to, or take any other action regardingin response to a request therefor, give access to the Company Assets or the books and records of the Company or its Subsidiaries to, any inquiryPerson that has made or, expression to the Knowledge of interestthe Company, proposal or offer that constitutes, or would reasonably may be expected to lead to, an considering making any Acquisition Proposal, ; (iii) agree togrant any waiver or release under any standstill or similar contract relating to the Shares or the Company or its Subsidiaries to which it or any of its Subsidiaries is a party, accept, including the Company Rights Agreement; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into any agreement in principle, arrangement, understanding or publicly propose or announce contract for any intention or desire to agree Acquisition Proposal
(b) The Company shall, and shall cause each of its Subsidiaries and instruct its Representatives to, acceptimmediately cease any existing solicitations, discussions, negotiations or other activity with any Person being conducted with respect to any Acquisition Proposal on the date hereof. The Company shall promptly inform its Representatives who have been engaged or are otherwise providing assistance in connection with the transactions contemplated by this Agreement of the Company's obligations under this Section 6.03. Without limiting the foregoing, the Company agrees that any breach of the restrictions set forth in this Section 6.03, including any failure of such Representatives to comply with any instructions referred to above, by any of such Representatives or any Affiliate of the Company shall be deemed to be a breach by the Company of this Section 6.03.
(c) The Company shall notify Parent as soon as practicable (but in any event within 24 hours) after receipt of (i) any Acquisition Proposal or indication from any Person that it intends to make, or is considering making, an Acquisition Proposal or (ii) any request for non-public information relating to the Company or any of its Subsidiaries or for access to the Company Assets or the books and records of the Company or its Subsidiaries by any Person that the Company reasonably believes is reasonably likely to lead to an Acquisition Proposal. The Company shall provide Parent with the identity of such Person, a description of the material terms of such Acquisition Proposal or request and, if applicable, a copy of such Acquisition Proposal. The Company shall keep Parent informed on a reasonably current basis of the status and the material terms of any such Acquisition Proposal, indication or request.
(d) Notwithstanding the foregoing, prior to the Acceptance Date, nothing in this Agreement shall prevent the Company or its Board of Directors from:
(i) engaging in discussions or negotiations with, or furnishing or disclosing any information relating to, the Company or any of its Subsidiaries or giving access to the Company Assets or the books and records of the Company or any of its Subsidiaries to, any Person who, after the date hereof, makes a bona fide written Acquisition Proposal not solicited after the date hereof in violation of the provisions herein set forth if (x) the Board of Directors has (A) acted in good faith and by a majority of the members of its entire Board of Directors, (B) determined, after consultation with its financial advisor, that such Acquisition Proposal is reasonably likely to result in a Superior Proposal and (C) determined, after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to result in a breach of its fiduciary obligations to the stockholders of the Company under applicable laws (in each case, taking into account any adjustments to the terms and conditions of this Agreement, the Offer or the Merger offered in writing by Parent in response to such Acquisition Proposal), (y) the Company enters into a confidentiality agreement with such Person provided that to the extent such Confidentiality Agreement is on terms and conditions materially more favorable to such Person than those contained in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to contain such materially more favorable terms; and
(ii) subject to compliance with Section 6.03(d)(i), entering into a definitive agreement providing for the implementation of or approving, endorsing or recommending an Acquisition Proposal, but only so long as (A) the Board of Directors, acting in good faith and by a majority of the entire Board of Directors, has (1) approved such definitive agreement, (2) determined, after consultation with its financial advisor, that such bona fide written and unsolicited Acquisition Proposal constitutes a Superior Proposal and (3) determined, after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to result in a breach of its fiduciary obligations to the stockholders of the Company under applicable laws and (B) the Company terminates this Agreement pursuant to, and after complying with all of the provisions of, Section 8.01(f).
(e) If the Company or any of its Subsidiaries or its or their Representatives receives a request for information from a Person who has made an unsolicited bona fide written Acquisition Proposal involving the Company and the Company is permitted to provide such Person with information pursuant to this Section 6.03, the Company will provide to Parent a copy of the confidentiality agreement with such Person promptly upon its execution and provide to Parent a list of, and copies of, the information provided to such Person promptly after its delivery to such Person and promptly provide Parent with access to all information to which such Person was provided access, in each case only to the extent not previously provided to Parent.
(f) The Board of Directors of the Company shall not (i) approve, endorse or recommend) , or propose to approve, endorse or recommend, any Acquisition Proposal, Proposal or (ivii) enter into any letter of intent agreement in principle or any other Contract contemplating understanding or otherwise contract relating to any an Acquisition Proposal, or (v) submit any Acquisition Proposal to unless the vote of any shareholders of Company or any Subsidiary. Each terminates this Agreement pursuant to, and after complying with all of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activitiesprovisions of, discussions or negotiations with any Persons conducted prior to or on Section 8.01(f).
(g) Notwithstanding the Agreement Date with respect to any Acquisition Proposal. If any Company Representativeforegoing, whether in his or her capacity as such or in any other capacity, takes any action that (i) the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then Board of Directors of the Company shall be deemed for all purposes permitted to disclose to the stockholders of the Company a position with respect to an Acquisition Proposal required by Rule 14e-2(a), Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act and (ii) the Board of Directors of the Company may withdraw, modify or amend the recommendation of the Offer, the Merger and this Agreement by the Board of Directors of the Company at any time if, in each case, it determines, after consultation with its outside legal counsel, that the failure to have breached this Section 6.1take such action is reasonably likely to result in a breach of its fiduciary obligations to the stockholders of the Company under applicable laws.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Encana Corp), Merger Agreement (Brown Tom Inc /De)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII(a) The Company shall not, neither the Company nor shall it permit any of its Subsidiaries nor any of the Company Shareholders willcontrolled Affiliates to, nor will any of them shall it authorize or permit any of their respective its or its controlled Affiliates’ directors, officers, directorsemployees, affiliatesinvestment bankers, shareholders or employees or any investment bankerattorneys, attorney accountants or other advisor advisors or representative retained by any of them representatives (all of the foregoing collectively being the collectively, “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, entertain, initiate or encourage, or take any other action to knowingly facilitate, support any Acquisition Proposal or induce any inquiries or the making, submission or announcement of any inquiryproposal that is reasonably likely to lead to an Acquisition Proposal or (ii) enter into, expression continue or otherwise participate in any discussions or negotiations regarding, or otherwise knowingly cooperate in any way with any Person with respect to, any Acquisition Proposal or any inquiries or the making of interestany proposal that could reasonably be expected to lead to an Acquisition Proposal, or (iii) furnish to any Person any information relating to the Company or any of its Subsidiaries, or afford to any Person access to the business, properties, assets, books, records or other information, or to any personnel, of the Company or any of its Subsidiaries, in any such case that would reasonably be expected to induce the making, submission or announcement of, or encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal, or offer (iv) grant (other than to Buyer or any of its Affiliates or Representatives) any waiver or release under any standstill or similar agreement, or (v) enter into any merger agreement, letter of intent, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement contemplating or otherwise relating to, or that constitutesis intended to, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal. The Company shall, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and shall cause its Subsidiaries will and direct their Representatives to, immediately cease and cause to be terminated any and all existing activitiesdiscussions and negotiations with any Person conducted heretofore with respect to any Acquisition Proposal and shall request the prompt return or destruction of all confidential information previously furnished in connection therewith. Notwithstanding anything in this Agreement to the contrary, at any time prior to the Offer Closing, the Company, in response to an unsolicited written Acquisition Proposal that the Board of Directors of the Company determines in good faith (after consultation with its financial advisors and outside legal counsel) constitutes or could reasonably be expected to lead to a Superior Proposal, may, and may permit and authorize its Affiliates and its and its Affiliates’ Representatives to, in each case subject to compliance with Section 6.2(b) and the other provisions of this Agreement, (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement which contains terms that in all material respects are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) participate in discussions or negotiations with the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal provided, however, that in the case of any Persons conducted prior action taken pursuant to the preceding clauses (A) or on (B), (i) the Agreement Date Company Board of Directors has determined in good faith (after consultation with outside legal counsel) that the failure to take such action would reasonably be expected to be a breach of its fiduciary duties to the shareholders of the Company under Georgia Law, (ii) the Company gives Buyer not less than two Business Days written notice of the identity of such Person and the material terms of such Acquisition Proposal and of the Company’s intention to participate or engage in discussions or negotiations with, or furnish information to, such Person, (iii) contemporaneously with furnishing any information to such Person, the Company furnishes such information to Buyer to the extent such information has not been previously furnished by the Company to Buyer and (iv) there has not been any material breach of this Section 6.2 by the Company. The Company shall not terminate, waive, amend, release or modify any material provision of any confidentiality agreement to which it or any of its Subsidiaries is a party with respect to any Acquisition Proposal. If Without limiting the generality of the foregoing, it is understood that any Company Representative, whether violation of the restrictions set forth in his or her capacity as such or in this Section 6.2(a) by any other capacity, takes any action that controlled Affiliate of the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then or any of the Company Company’s or its controlled Affiliates’ Representatives shall be deemed for all purposes to be a breach by the Company of this Agreement to have breached this Section 6.16.2(a).
Appears in 2 contracts
Sources: Merger Agreement (NCR Corp), Merger Agreement (Radiant Systems Inc)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII(a) Except as permitted by Section 5.2(c), neither the Company nor shall not, and shall not permit or authorize any of its Subsidiaries nor or any director, officer, employee, investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of the Company Shareholders will, nor will or any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) toits Subsidiaries, directly or indirectly, to:
(i) solicit, initiate, seek, entertain, endorse or encourage, or knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interestproposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that constitutesis reasonably likely to lead to any Acquisition Proposal;
(ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or would furnish to any Person any information or data with respect to, or otherwise knowingly cooperate in any way with, any Acquisition Proposal; or
(iii) resolve, propose or agree to do any of the foregoing.
(b) Except as permitted by Section 5.2(c), the Company shall, and shall cause each of its Subsidiaries and the Representatives of the Company and its Subsidiaries to:
(i) immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal;
(ii) request the prompt return or destruction of all confidential information previously furnished with respect to any Acquisition Proposal since January 1, 2010; and
(iii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which it or any of its Subsidiaries or Representatives is a party with respect to any Acquisition Proposal, and shall enforce the provisions of any such agreement.
(c) Notwithstanding the foregoing Sections 5.2(a) and (b), if at any time following the date of this Agreement and prior to obtaining the Company Shareholder Approval, (1) the Company receives a written Acquisition Proposal that the Company Board believes in good faith to be bona fide, (2) such Acquisition Proposal did not result from a breach of this Section 5.2, (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (4) the Company Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) below is reasonably likely to constitute a breach of its fiduciary duties to the shareholders of the Company under applicable Law, then the Company may (x) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal pursuant to a customary confidentiality agreement containing terms substantially similar to, and no less favorable to the Company than, those set forth in the Confidentiality Agreement (provided, that any non-public information provided to any Person given such access shall have been previously provided to Parent or shall be expected provided to Parent prior to or concurrently with the time it is provided to such Person) and (y) participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal.
(d) Except as permitted by Section 5.2(e), neither the Company Board nor any committee thereof shall:
(i) (A) withdraw (or modify or qualify in any manner adverse to Parent or Merger Sub) the adoption, approval or recommendation or declaration of advisability by the Company Board or any such committee of this Agreement, the Merger or any of the other transactions contemplated hereby, (B) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal or (C) resolve, agree or publicly propose to take any such actions (each such action set forth in this Section 5.2(d)(i) being referred to herein as an “Adverse Recommendation Change”); or
(ii) (A) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract (each, an “Alternative Acquisition Agreement”) constituting or related to, or which is intended to or is reasonably likely to lead to, any Acquisition Proposal or (B) resolve, agree or propose to take any such actions.
(e) Notwithstanding the foregoing Sections 5.2(d)(i) and (d)(ii), at any time prior to obtaining the Company Shareholder Approval, the Company Board may, solely in response to a Superior Proposal received after the date hereof that did not result from a breach of this Section 5.2, if the Company Board determines in good faith (after consultation with outside counsel) that the failure to do so is reasonably likely to result in a breach of its fiduciary duties to the shareholders of the Company under applicable Law, taking into account all adjustments to the terms of this Agreement that may be offered by Parent pursuant to this Section 5.2(e), (x) make an Adverse Recommendation Change or (y) cause the Company to terminate this Agreement pursuant to Section 7.1(d)(ii) (including payment of the Termination Fee) and concurrently enter into a binding Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company may not make an Adverse Recommendation Change or terminate this Agreement in response to a Superior Proposal as referred to above unless (1) the Company promptly notifies Parent in writing at least four Business Days before taking that action of its intention to do so, and specifying the reasons therefor, including the terms and conditions of, and the identity of any Person making, such Superior Proposal, and contemporaneously furnishing a copy of the relevant Alternative Acquisition Agreement and any other relevant transaction documents (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 written notice by the Company and a new four Business Day period) and (2) prior to the expiration of such four Business Day period, Parent does not make a proposal to adjust the terms and conditions of this Agreement that the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) to be at least as favorable as the Superior Proposal after giving effect to, among other things, the payment of the Termination Fee set forth in Section 7.3, such that the Company Board determines such action is no longer required by its fiduciary duties to the shareholders of the Company under applicable Law. During the four Business Day period prior to its effecting an Adverse Recommendation Change or terminating this Agreement as referred to above, the Company shall, and shall cause its financial and legal advisors to, negotiate with Parent in good faith (to the extent Parent seeks to negotiate) regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by Parent.
(f) In addition to the obligations of the Company set forth in Sections 5.2(a), (b), (c), (d) and (e), the Company promptly, and in any event within one Business Day of receipt (unless such receipt is by any director or executive officer of the Company or a director an executive officer has knowledge of such receipt by the Company, in which case such one Business Day period shall instead be deemed to be a 24 hour period from the time of such receipt by, or the time such knowledge was first gained by, such director or executive officer), shall advise Parent in writing in the event the Company or any of its Subsidiaries or Representatives receives (i) any Acquisition Proposal or indication by any Person that it is considering making an Acquisition Proposal, (ii) enter intoany request for information, participate in, maintain discussion or continue any communications negotiation that is reasonably likely to lead to or that contemplates an Acquisition Proposal or (except solely to provide written notice as to the existence of these provisionsiii) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would is reasonably be expected likely to lead to, to an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any in each case together with the terms and conditions of such Acquisition Proposal, request, inquiry, proposal or offer and the identity of the Person making any such Acquisition Proposal, request, inquiry, proposal or offer, and shall furnish Parent with a copy of such Acquisition Proposal (ivor, where such Acquisition Proposal is not in writing, with a description of the material terms and conditions thereof). The Company shall keep Parent informed (orally and in writing) in all material respects on a timely basis of the status and details (including, within one Business Day after the occurrence (or, if a director or an executive officer of the Company was involved in or had knowledge of such occurrence, then within 24 hours of the time of such director or executive officer’s first involvement therein or at which such director or executive officer first gained such knowledge) of any amendment, modification, development, discussion or negotiation by the Company) of any such Acquisition Proposal, request, inquiry, proposal or offer, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting any of the foregoing, the Company shall promptly (and in any event within one Business Day or, in the case of any such determination or engagement by any director or executive officer or of which a director or an executive officer has knowledge, then within 24 hours of the time of such determination or engagement or at which such director or executive officer first gained such knowledge) notify Parent orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.2(a), (b), (c), (d) or (e) and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
(g) The Company shall not, and shall cause its Subsidiaries not to, enter into any letter confidentiality agreement with any Person subsequent to the date of intent this Agreement that would restrict the Company’s ability to comply with any of the terms of this Section 5.2, and represents that neither it nor any of its Subsidiaries is a party to any such agreement.
(h) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 180.1141 of the WBCL (or any similar provision of any other Contract contemplating Takeover Law) or otherwise relating cause such restrictions not to any Acquisition Proposalapply, or agree to do any of the foregoing, in each case, unless such actions are taken substantially concurrently with a termination of this Agreement pursuant to Section 7.1(d)(ii).
(vi) submit any Acquisition Proposal to Nothing contained in this Section 5.2 shall prohibit the vote Company from taking and disclosing a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of any shareholders of Company or any Subsidiary. Each Regulation M-A promulgated under the Exchange Act; provided, however, that in no event shall this Section 5.2(i) affect the obligations of the Company specified in Sections 5.2(d) and its Subsidiaries will immediately cease (f); and cause to be terminated provided further, that any such disclosure (other than a “stop, look and all existing activities, discussions listen” communication or negotiations with any Persons conducted prior to or on similar communication of the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that type contemplated by Section 14d-9(f) under the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company Exchange Act) shall be deemed to be an Adverse Recommendation Change (including for all purposes of Section 7.1(c)(ii)) unless the Company Board expressly reaffirms its recommendation to its shareholders in favor of the approval and adoption of this Agreement and the transactions contemplated hereby at least two Business Days prior to the Company Shareholders Meeting.
(j) For purposes of this Agreement to have breached this Section 6.1.Agreement:
Appears in 2 contracts
Sources: Merger Agreement (TomoTherapy Inc), Merger Agreement (Accuray Inc)
No Solicitation. (a) From the date of this Agreement and after ending on the Agreement Date until earlier of the Closing or and the valid termination of this Agreement pursuant to Article VIIIin accordance with Section 9.01, neither the Company nor any of its Subsidiaries nor any of shall not, and shall cause the Company Shareholders will, nor will any of them authorize or permit any of Subsidiaries not to and shall direct its and their respective officers, directors, affiliates, shareholders Representatives acting on its or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) their behalf not to, directly or indirectly, (i) enter into, solicit, initiate, seek, entertain, encourage, knowingly facilitate, support knowingly encourage or induce continue any discussions or negotiations with, or knowingly encourage any inquiries or proposals by, or participate in any negotiations with, or provide any information to, or otherwise cooperate in any way with, any person or other entity or “group” within the makingmeaning of Section 13(d) of the Exchange Act, submission or announcement concerning any sale of any inquirymaterial portion of the assets of the Company and the Company Subsidiaries on a consolidated basis or any of the outstanding voting securities of the Company or of any Company Subsidiary or any arrangement, expression merger, amalgamation, share exchange, consolidation, liquidation, dissolution, business combination or similar transaction involving the Company or any of interestthe Company Subsidiaries other than with NGA and its Representatives or in connection with the Pre-Closing Reorganization (an “Alternative Transaction”), (ii) amend or grant any waiver or release under any standstill or similar agreement executed by the Company or any of the Company Subsidiaries with respect to any class of equity securities of the Company or any of the Company Subsidiaries, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Transaction, (iv) approve, endorse, recommend, execute or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Alternative Transaction or any proposal or offer that constitutes, or would could reasonably be expected to lead to an Alternative Transaction, (v) commence, continue or renew any due diligence investigation regarding any Alternative Transaction, or (vi) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives acting on its behalf to take any such action. The Company shall, and shall cause the Company Subsidiaries to and shall direct its and their respective Representatives to, an Acquisition Proposalimmediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The parties agree that any violation of the restrictions set forth in this Section 7.01 by the Company or its respective affiliates or Representatives shall be deemed to be a breach of this Section 7.01 by the Company.
(b) From the date of this Agreement and ending on the earlier of the Closing and the valid termination of this Agreement in accordance with Section 9.01, NGA shall not, and shall direct its Representatives acting on its behalf not to, directly or indirectly, (i) enter into, solicit, initiate, knowingly facilitate, knowingly encourage or continue any discussions or negotiations with, or knowingly encourage any inquiries or proposals by, or participate in any negotiations with, or provide any information to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning any acquisition of assets of NGA or outstanding capital stock of NGA or any arrangement, merger, amalgamation, share exchange, consolidation, liquidation, dissolution, business combination or similar transaction involving NGA and any other corporation, partnership or other business organization other than the Company and Company Subsidiaries (a “NGA Alternative Transaction”), (ii) enter intoapprove, participate in, maintain endorse or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regardingrecommend, or deliver propose publicly to approve, endorse or make available recommend, any NGA Alternative Transaction, (iii) approve, endorse, recommend, execute or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Person NGA Alternative Transaction or any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposala NGA Alternative Transaction, (iv) enter into commence, continue or renew any letter of intent or due diligence investigation regarding any other Contract contemplating or otherwise relating to any Acquisition ProposalNGA Alternative Transaction, or (v) submit resolve or agree to do any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company foregoing or otherwise authorize or permit any of its Representatives acting on its behalf to take any such action. NGA shall, and shall direct its Subsidiaries will respective affiliates and Representatives acting on its behalf to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons person conducted prior to or on the Agreement Date heretofore with respect to any Acquisition ProposalNGA Alternative Transaction. If The parties agree that any Company Representative, whether violation of the restrictions set forth in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company 7.01 by NGA or its respective affiliates or Representatives shall be deemed for all purposes to be a breach of this Agreement to have breached this Section 6.17.01 by NGA.
Appears in 2 contracts
Sources: Business Combination Agreement (Lion Electric Co), Business Combination Agreement (Northern Genesis Acquisition Corp.)
No Solicitation. From (a) The Company will not, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them not authorize or permit any of their respective its directors, officers, directorsemployees, affiliates, shareholders stockholders or employees Affiliates or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, Proposal or (v) submit any Acquisition Proposal to the vote of any shareholders securityholders of Company. The Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 5.2 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.15.2.
(b) The Company shall promptly (but in any event, within 24 hours) notify Parent in writing after receipt by the Company (or, to the knowledge of the Company, by any of the Company Representatives), of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for nonpublic information relating to the Company or its Subsidiaries or for access to any of the properties, books or records of the Company or its Subsidiaries by any Person or Persons other than Parent that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request. The Company shall keep Parent fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Parent a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. The Company shall provide Parent with 48 hours prior notice (or such lesser prior notice as is provided to the members of the Board of Directors of the Company) of any meeting of the Board of Directors of the Company at which the Board of Directors of the Company is reasonably expected to discuss any Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (MINDBODY, Inc.)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIIIThe Company shall not, neither the Company nor shall it permit any of its Subsidiaries to, nor shall the Company or any of the Company Shareholders will, nor will any of them its Subsidiaries authorize or permit any of their respective officers, directors, affiliates, shareholders agents or employees or representatives (including any investment banker, attorney or other advisor or representative accountant retained by the Company or any of them (all of the foregoing collectively being the “Company Representatives”its Subsidiaries) to, directly or indirectly, : (i) solicit, initiate, seek, entertain, solicit or initiate or knowingly encourage, facilitate, support facilitate or induce any inquiry with respect to, or the making, submission or announcement of of, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue engage in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public nonpublic information with respect to, or take any other action regarding, to knowingly encourage or facilitate any inquiry, expression inquiries or the making of interest, any proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, an any Acquisition Proposal, (iii) agree to, accept, approve, endorse endorse, recommend or recommend (make or publicly propose authorize any statement, recommendation or announce any intention or desire to agree to, accept, approve, endorse or recommend) solicitation in support of any Acquisition Proposal, (iv) withdraw, amend or modify, or propose to withdraw, amend or modify, in a manner adverse to Parent its recommendation in favor of the adoption of the Agreement by the stockholders of the Company or (v) execute or enter into into, or propose to execute or enter into, any letter of intent or similar document or any other Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition ProposalProposal or transaction contemplated thereby, except in the case of clauses (ii), (iii), (iv) or (v) submit any Acquisition Proposal to the vote of any shareholders of Company extent expressly permitted by Sections 5.3(c) or any Subsidiary(d). Each of the The Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations (including, without limitation, any such activities, discussions or negotiations conducted by affiliates, directors, officers, employees, agents and representatives (including any investment banker, financial advisor, attorney, accountant or other representative) of the Company or any of its Subsidiaries) with any Persons third parties conducted prior to or on the Agreement Date heretofore with respect to consideration of any Acquisition Proposal. If The Company will exercise any Company Representative, whether in his rights under any confidentiality or her capacity as non-disclosure agreements with any such third parties to require the return or in any other capacity, takes any action that destruction of non-public information provided prior to the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes date of this Agreement by the Company, its Subsidiaries or their agents and representatives to have breached this Section 6.1any such third parties.
Appears in 2 contracts
Sources: Merger Agreement (Cap Gemini Sa), Merger Agreement (Kanbay International Inc)
No Solicitation. From and after Each Stockholder hereby agrees that during the Agreement Date until the Closing or termination term of this Agreement pursuant to Article VIIIit shall not, neither the Company nor and shall not permit any of its Subsidiaries nor any of the Company Shareholders willSubsidiaries, nor will any of them authorize Affiliates or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives to, directly or indirectly, (i) initiate, solicit, initiate, seek, entertain, encourage, facilitate, support encourage or induce knowingly facilitate (including by way of providing information) the making, submission or announcement of any inquiryinquiries, expression of interest, proposal proposals or offer offers (whether firm or hypothetical) or any other efforts or attempts that constitutes, constitute or would may reasonably be expected to lead to, an any Acquisition Proposal, (ii) enter into, participate in, maintain have any discussions with or continue provide any communications (except solely confidential information or data to provide written notice as any person relating to the existence of these provisions) or negotiations regardingan Acquisition Proposal, or deliver or make available to engage in any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, negotiations concerning an Acquisition Proposal, (iii) agree toapprove or recommend, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse approve or recommend) , any Acquisition Proposal, (iv) approve or recommend, or publicly propose to approve or recommend, or execute or enter into into, any letter of intent intent, agreement in principle, memorandum of understanding, merger agreement, asset or any share purchase or share exchange agreement, option agreement or other Contract contemplating or otherwise relating similar agreement related to any Acquisition Proposal, or (v) submit enter into any Acquisition Proposal agreement or agreement in principle requiring, directly or indirectly, the Company to abandon, terminate or fail to consummate the transactions contemplated by the Merger Agreement or breach its obligations thereunder, (vi) make or participate in, directly or indirectly, a “solicitation” of “proxies” (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any shares of Common Stock in connection with any vote of or other action on any shareholders of Company or any Subsidiary. Each matter, other than to recommend that stockholders of the Company vote in favor of the adoption of the Merger Agreement and its Subsidiaries will as otherwise expressly provided in this Agreement, or (vii) publicly propose or agree to do any of the foregoing. Each Stockholder hereby agrees immediately to cease and cause to be terminated any and all existing activities, discussions or negotiations conducted before the date of this Agreement with any Persons conducted prior to or on the Agreement Date other than Acquiror with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as and will take the necessary steps to inform its Affiliates and Representatives of the obligations undertaken by such or in any other capacity, takes any action that the Company is obligated Stockholder pursuant to this Agreement, including this Section 6.1 to cause such Company Representative not to take, then the Company 4.3. Each Stockholder also agrees that any violation of this Section 4.3 by any of its Affiliates or Representatives shall be deemed for all purposes to be a violation by such Stockholder of this Agreement to have breached this Section 6.14.3.
Appears in 2 contracts
Sources: Voting Agreement (optionsXpress Holdings, Inc.), Voting Agreement (Schwab Charles Corp)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any (a) Each of the Company Shareholders willand the Seller will not, nor and will any of them not authorize or permit any of their its respective directors, officers, directorsemployees, affiliates, shareholders stockholders or employees Affiliates or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Company/Seller Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote Seller or (vi) enter into any other transaction or series of any shareholders of Company or any Subsidiary. Each transactions not in the ordinary course of the Company’s business, the consummation of which could reasonably be expected to impede, interfere with, prevent or delay the Share Purchase or the other Transactions. The Company and Seller will, and will cause each of its Subsidiaries will own Company/Seller Representatives to, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal and (B) immediately revoke or withdraw access of any Person (other than Acquiror and its directors, officers, employees, stockholders or Affiliates or any investment banker, attorney or other advisor or representative retained by Acquiror (all of the foregoing collectively being the “Acquiror Representatives”)) to any data room (virtual or actual) containing any non-public information with respect to the Company in connection with an Acquisition Proposal and request from each Person (other than Acquiror and the Acquiror Representatives) the prompt return or destruction of all non-public information with respect to the Company previously provided to such Person in connection with an Acquisition Proposal. If any Company RepresentativeCompany/Seller Representatives, whether in his or her or its capacity as such or in any other capacity, takes any action that the Company is and Seller are obligated pursuant to this Section 6.1 51 to cause such Company Representative Company/Seller Representatives not to take, then then, the Company and Seller shall be deemed for all purposes of this Agreement to have breached this Section 6.15.1.
(b) The Company and Seller shall promptly (but in any event, within 24 hours) notify Acquiror orally and in writing after receipt by the Company (or, to the knowledge of the Seller and/or Company, by any of the Company/Seller Representatives), of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (iii) any other written notice that any Person is considering making an Acquisition Proposal, or (iv) any request for nonpublic information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror and the Acquiror Representatives.
Appears in 2 contracts
Sources: Share Purchase Agreement (Medigus Ltd.), Share Purchase Agreement (ParaZero Technologies Ltd.)
No Solicitation. From and after the Agreement Date (a) Except as otherwise permitted by this Section 5.4, until the Closing or termination of this Agreement pursuant to Article VIIIin accordance with the terms hereof, neither the Company nor any of its Subsidiaries nor any agrees that none of the Company Shareholders willAcquired Companies shall, nor will any of them and it shall not authorize or permit any of their respective officersthe Acquired Companies’ Representatives, directorson its behalf, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertain, encourage, facilitate, support knowingly encourage or induce knowingly facilitate the making, submission or announcement of, any Acquisition Proposal, provided that the parties acknowledge and agree that nothing in this clause (i) shall be deemed to restrict in any manner the operation of the business of the Acquired Companies, 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 the making of any inquiry, expression of interest, proposal or offer that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions or negotiations with any 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 shareholders or any other Person any Acquisition Proposal, 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. Except as permitted by Section 5.4 and subject to compliance with its terms, the Company shall immediately terminate, and shall cause each Acquired Company and its and each Acquired Company’s Representatives to terminate immediately, all activities, 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. The Company shall immediately demand, and request its affiliates to immediately demand, that each person which has heretofore executed a confidentiality agreement with it or any of its affiliates or any Acquired Company or any of its or its affiliates’ or any Acquired Company’s Representatives since January 1, 2010 with respect to such Person’s consideration of a possible Acquisition Proposal (iifor the purposes of this sentence only, shall substitute for each reference to “85%” and “15%” appearing in the definition of an “Acquisition Transaction,” “75%” and “25%,” respectively) enter into, participate in, maintain to immediately return or continue any communications destroy (except solely to provide written notice as and have such destruction certified in writing by such Person to the existence Company hereunder) all confidential information heretofore furnished by the Company or any of these provisionsits affiliates or any Acquired Company or any of its or its affiliates’ or any Acquired Company’s 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) or negotiations regardingPromptly, but in any event within twenty-four (24) hours, after receipt of any Acquisition Proposal by the Company, or deliver any request for nonpublic information or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or inquiry which it reasonably believes would reasonably be expected to lead to, 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 (iiiincluding, for the avoidance of doubt, the financial 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, it shall promptly keep Parent informed in all material respects of the status and details (including material amendments or proposed material amendments) agree toof any such Acquisition Proposal, acceptrequest or inquiry and shall promptly provide to Parent a copy of all written materials subsequently provided in connection with such Acquisition Proposal, request or inquiry.
(c) If, prior to the Company General Meeting, the Company receives an unsolicited (including unsolicited by any Voting Undertaking Company Shareholder in breach of its Voting and Support Agreement), bona fide written Acquisition Proposal made after the date hereof which the Company’s board of directors (or any committee thereof charged with such authority) has concluded in good faith, after consultation with outside legal counsel, and after taking into account the legal, financial, fiduciary and other aspects of such unsolicited bona fide written Acquisition Proposal, (y) constitutes or is reasonably likely to constitute a Superior Proposal and (z) that the failure to take some or all of the actions set forth in clause (i) or clause (ii) below with respect to such Acquisition Proposal would constitute a breach of its fiduciary obligations to the Company’s shareholders under applicable Legal Requirements (which for this purpose shall be deemed to consist of Israeli Legal Requirements and, in addition, in order to determine the appropriate standards that would apply to such fiduciary obligations, the Company’s board of directors may also consider and act on the basis of Delaware Legal Requirements), the Company shall promptly, but in any event in less than one (1) day following the date of such conclusion (but in any event at least one (1) Business Day prior to taking the actions set forth in (i) and (ii) below), provide to Parent written notice that shall state expressly (A) that it has received an Acquisition Proposal which constitutes or is reasonably expected to lead to a Superior Proposal, (B) that the Company’s board of directors (or a committee thereof charged with such authority) has made the conclusions set forth in clause (z) 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:
(i) furnish nonpublic information that could reasonably be expected to lead to an Acquisition Proposal to the third party making such Acquisition Proposal, provided, that (y) prior to so furnishing, the Company receives from the third party an executed confidentiality agreement containing confidentiality provisions no more favorable to the third party than the confidentiality provisions under the Confidentiality Agreement, and (z) subject to applicable antitrust laws and regulations relating to the exchange of information, promptly following furnishing any such nonpublic information to such third party, the Company furnishes a copy of such nonpublic information to Parent hereunder (to the extent such nonpublic information has not been previously so furnished), and
(ii) 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 Company with this Section 5.4(d), the board of directors (or any committee thereof charged with such authority) of the Company may (y) withhold or withdraw the Company Board Recommendation, or (z) approve, adopt, endorse or recommend to its shareholders a Superior Proposal (any of the foregoing actions, whether by the Company’s board of directors or a committee thereof, a “Change of Recommendation”), only if all of the following conditions are met:
(i) the Company General Meeting has not occurred,
(ii) the board of directors (or publicly propose or announce any intention or desire to agree tocommittee thereof charged with such authority) of the Company has concluded in good faith, acceptbased on advice of its outside legal counsel, approveand after taking into account the legal, endorse or recommend) any financial, fiduciary and other aspects of such unsolicited bona fide written Acquisition Proposal, that, in light of such Superior Proposal, the failure of the board of directors to effect a Change of Recommendation would constitute a breach of its fiduciary obligations to its shareholders under applicable Legal Requirements (ivwhich for this purpose shall be deemed to consist of Israeli Legal Requirements and, in addition, in order to determine the appropriate standards that would apply to such fiduciary obligations, the Company’s board of directors may also consider and act on the basis of Delaware Legal Requirements), and
(iii) enter into any letter the Company’s board of directors has (x) provided to Parent 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), provided that such five (5) Business Day period shall be extended for an additional five (5) Business Days following each modification of the financial or any other Contract contemplating or otherwise materials terms of such Superior Proposal so long as the Company’s board of directors determines that such modified proposal continues to constitute a Superior Proposal, (y) subject to applicable antitrust laws and regulations relating to any Acquisition the exchange of information, made available to Parent all materials and information made available to the Person making the Superior Proposal in connection with such Superior Proposal, or and (vz) submit any for such five (5) Business Day period (plus each applicable extension) following the delivery to Parent of such notice and the provision of the materials and information referred to in (y) above, the Company shall, if requested by Parent, negotiate in good faith with Parent to revise this Agreement with the goal that the Acquisition Proposal that constituted a Superior Proposal would no longer constitute a Superior Proposal.
(e) Unless this Agreement has been terminated in accordance with Section 9.1 and no Legal Proceeding to dispute such termination shall have been commenced by Parent in good faith and is then pending, the Company agrees that it shall not submit to the vote of its shareholders any shareholders 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 from making such disclosures as may be required, based on the advice of the Company’s outside legal counsel, by Israeli or U.S. federal securities laws or applicable fiduciary duties.
(f) Nothing contained in this Section 5.4 shall prohibit the Company or the Company’s board of directors from (i) taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement required under Rule 14d-9 under the Exchange Act, and (ii) making any Subsidiary. Each of the Company and disclosure to its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action stockholders that the Company Board shall have determined in good faith (after consultation with its outside legal counsel) is obligated pursuant to required under applicable Legal Requirements (which for this Section 6.1 to cause such Company Representative not to take, then the Company purpose shall be deemed for to consist of Israeli Legal Requirements and, in addition, in order to determine the appropriate standards that would apply to such fiduciary obligations, the Company’s board of directors may also consider and act on the basis of Delaware Legal Requirements) and all purposes applicable rules and regulations of this Agreement to have breached this Section 6.1the SEC.
Appears in 2 contracts
Sources: Merger Agreement (Voltaire Ltd.), Merger Agreement (Mellanox Technologies, Ltd.)
No Solicitation. From and after the Agreement Date date hereof until the Closing Expiration Date, the Stockholder, in his or termination her capacity as a stockholder of this Agreement pursuant to Article VIIIthe Company, neither shall not, nor shall such Stockholder in such capacity authorize any of his or her affiliates, other than the Company nor in accordance with the terms of the Merger Agreement, to (and, to the extent applicable to the Stockholder, such Stockholder shall use reasonable best efforts to prevent any of its Subsidiaries nor any his or her representatives or affiliates, other than the Company in accordance with the terms of the Company Shareholders willMerger Agreement to) (a) initiate, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, entertain, induce or knowingly encourage, facilitateor take any action to facilitate the making of, support or induce the making, submission or announcement of any inquiry, expression of interest, offer or proposal or offer that which constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, ; (iib) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingregarding any Acquisition Proposal or furnish, or deliver or make available otherwise afford access, to any Person (other than Buyer) any non-public information or data with respect to, to the Company or take any other action regarding, any inquiry, expression of interest, proposal its Subsidiaries or offer that constitutes, or would reasonably be expected otherwise relating to lead to, an Acquisition Proposal; (c) release any Person from, waive any provisions of, or fail to enforce any confidentiality agreement or standstill agreement to which the Company is a party; (d) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to an Acquisition Proposal (other than the Merger Agreement) or otherwise encourage or assist any party in taking or planning any action that would compete with, restrain or otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, (iiie) agree toinitiate a stockholders’ vote or action by consent of the Company’s stockholders with respect to an Acquisition Proposal (other than the Merger Agreement); (f) except by reason of this Agreement, accept, approve, endorse or recommend become a member of a “group” (or publicly propose or announce as such term is used in Section 13(d) of the Exchange Act) with respect to any intention or desire to agree to, accept, approve, endorse or recommend) voting securities of the Company that takes any action in support of an Acquisition Proposal, ; or (ivg) enter into any agreement, agreement in principle or letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal or any agreement, agreement in principle or letter of intent relating to an Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
Appears in 2 contracts
Sources: Voting Agreement (PCSB Financial Corp), Voting Agreement (Brookline Bancorp Inc)
No Solicitation. From (a) ABNJ shall not, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of shall cause its Subsidiaries nor any of and the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliatesemployees, shareholders or employees or any investment bankerbankers, attorney or financial advisors, attorneys, accountants, consultants, affiliates and other advisor or representative retained by any of them agents (all of the foregoing collectively being collectively, the “Company Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate, seek, entertain, induce or knowingly encourage, facilitateor take any action to facilitate the making of, support or induce the making, submission or announcement of any inquiry, expression of interest, offer or proposal or offer that which constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, ; (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingregarding any Acquisition Proposal or furnish, or deliver or make available otherwise afford access, to any Person (other than Investors) any non-public information or data with respect to, to ABNJ or take any other action regarding, any inquiry, expression of interest, proposal its Subsidiaries or offer that constitutes, or would reasonably be expected otherwise relating to lead to, an Acquisition Proposal, ; (iii) agree torelease any Person from, acceptwaive any provisions of, approve, endorse or recommend (fail to enforce any confidentiality agreement or publicly propose standstill agreement to which ABNJ is a party; or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any agreement, agreement in principle or letter of intent or any other Contract contemplating or otherwise relating with respect to any Acquisition Proposal, Proposal or (v) submit approve or resolve to approve any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiaryagreement, agreement in principle or letter of intent relating to an Acquisition Proposal. Each Any violation of the Company foregoing restrictions by ABNJ or any Representative, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of ABNJ or otherwise, shall be deemed to be a breach of this Agreement by ABNJ. ABNJ and its Subsidiaries will shall, and shall cause each of ABNJ Representative to, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or negotiations negotiations, and communications with any Persons conducted prior to or on the Agreement Date with respect to any existing or potential Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
Appears in 2 contracts
Sources: Merger Agreement (American Bancorp of New Jersey Inc), Merger Agreement (Investors Bancorp Inc)
No Solicitation. (a) From the date of this Agreement and after ending on the Agreement Date until earlier of the Closing or and the valid termination of this Agreement pursuant to Article VIIIin accordance with Section 9.1, neither the Company nor any of its Subsidiaries nor any of shall not, and shall cause the Company Shareholders will, nor will any of them authorize or permit any of Subsidiaries not to and shall direct its and their respective officers, directors, affiliates, shareholders Representatives acting on its or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) their behalf not to, directly or indirectly, (i) enter into, solicit, initiate, seek, entertain, encourage, knowingly facilitate, support or induce continue any discussions or negotiations with, or participate in any negotiations with, or provide any information to, or otherwise cooperate in any way with, any person or other entity or “group” within the makingmeaning of Section 13(d) of the Exchange Act, submission or announcement concerning any sale of any inquirymaterial assets of the Company or any of the outstanding capital stock of the Company or any conversion (other than the Preferred Stock Conversion), expression consolidation, merger, business combination, liquidation, dissolution or similar transaction involving the Company or any of interestthe Company Subsidiaries other than with Acquiror and its Representatives (an “Alternative Transaction”), (ii) 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 the Company Subsidiaries, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Transaction, (iv) approve, endorse, recommend, execute or enter into any agreement in principle, confidentiality agreement, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Alternative Transaction or any proposal or offer that constitutescould reasonably be expected to lead to an Alternative Transaction, (v) commence, continue or renew any due diligence investigation regarding any Alternative Transaction, or (vi) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives acting on its behalf to take any such action. The Company shall, and shall cause the Company Subsidiaries to and shall direct its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of an Alternative Transaction to return or destroy all confidential information furnished to such person by or on behalf of it pursuant to such agreement prior to the date hereof.
(b) From the date of this Agreement and ending on the earlier of the Closing and the valid termination of this Agreement in accordance with Section 9.1, the Company shall notify Acquiror promptly after receipt by the Company, the Company Subsidiaries or any of their respective Representatives of any (i) inquiry or proposal with respect to an Alternative Transaction, (ii) inquiry that would reasonably be expected to lead to an Alternative Transaction or (iii) request for non-public information relating to the Company or any of the Company Subsidiaries, or for access to the business, properties, assets, personnel, books or records of the Company or any of the Company Subsidiaries by any third party, in each case that is related to an inquiry or proposal with respect to an Alternative Transaction.
(c) If the Company or any of the Company Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time from the date of this Agreement and ending on the earlier of the Closing and the valid termination of this Agreement in accordance with Section 9.1, then the Company shall promptly notify such person in writing that the Company is subject to an exclusivity agreement with respect to the Alternative Transaction that prohibits them from considering such inquiry or proposal.
(d) From the date of this Agreement and ending on the earlier of the Closing and the valid termination of this Agreement in accordance with Section 9.1, each of Acquiror, First Merger Sub and Second Merger Sub shall not, and shall direct their respective Representatives acting on their behalf not to, directly or indirectly, (i) enter into, solicit, initiate, knowingly facilitate, knowingly encourage or continue any discussions or negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any information to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning any merger, consolidation, or acquisition of stock or assets or any other business combination involving Acquiror and any other corporation, partnership or other business organization other than the Company and Company Subsidiaries (an Acquisition Proposal“Acquiror Alternative Transaction”), (ii) enter intoapprove, participate in, maintain endorse or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regardingrecommend, or deliver propose publicly to approve, endorse or make available recommend, any Acquiror Alternative Transaction, (iii) approve, endorse, recommend, execute or enter into any agreement in principle, confidentiality agreement, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Person Acquiror Alternative Transaction or any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutescould reasonably be expected to lead to an Acquiror Alternative Transaction, (iv) commence, continue or renew any due diligence investigation regarding any Acquiror Alternative Transaction, or (v) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives acting on its behalf to take any such action. Each of Acquiror, First Merger Sub and Second Merger Sub shall, and shall direct their respective affiliates and Representatives acting on their behalf to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Acquiror Alternative Transaction. The parties agree that any violation of the restrictions set forth in this Section 7.1 by Acquiror, First Merger Sub or Second Merger Sub or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.1 by Acquiror, First Merger Sub and Second Merger Sub.
(e) From the date of this Agreement and ending on the earlier of the Closing and the valid termination of this Agreement in accordance with Section 9.1, Acquiror shall notify the Company promptly after receipt by Acquiror or any of its Representatives of any (i) inquiry or proposal with respect to an Acquiror Alternative Transaction, (ii) inquiry that would reasonably be expected to lead to, to an Acquisition Proposal, Acquiror Alternative Transaction or (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise request for non-public information relating to any Acquisition ProposalAcquiror, or (v) submit any Acquisition Proposal for access to the vote business, properties, assets, personnel, books or records of Acquiror by any shareholders of Company third party, in each case that is related to an inquiry or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date proposal with respect to Alternative Transaction.
(f) If Acquiror or any Acquisition Proposal. If of its Representatives receives any Company Representative, whether in his inquiry or her capacity as such or in proposal with respect to an Acquiror Alternative Transaction at any other capacity, takes any action that time from the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes date of this Agreement and ending on the earlier of the Closing and the valid termination of this Agreement in accordance with Section 9.1, then Acquiror shall promptly notify such person in writing that Acquiror is subject to have breached this Section 6.1an exclusivity agreement with respect to the Alternative Transaction that prohibits them from considering such inquiry or proposal.
Appears in 2 contracts
Sources: Business Combination Agreement (Jet Token Inc.), Business Combination Agreement (Oxbridge Acquisition Corp.)
No Solicitation. From and after (a) Except as expressly permitted by this Section 6.8, from the Agreement Date date hereof until the Closing earlier of the Effective Time or the termination of this Agreement pursuant to Article VIIIin accordance with Section 8.1, neither the Company nor any shall, and shall cause each of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of Affiliates and its and their respective officers, directors, affiliatesemployees and agents, shareholders or and shall use reasonable best efforts to cause each of its financial advisors, investment bankers, attorneys, accountants and other representatives (collectively with its Affiliates and its and their respective officers, directors, employees or any investment bankerand agents, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, : (iA) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted (other than Parent) that may be ongoing with respect to a Company Takeover Proposal and (B) not, directly or indirectly, (1) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, (2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any information in connection with or for the purpose of encouraging or facilitating, a Company Takeover Proposal, or (3) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Takeover Proposal.
(b) Company shall, and shall cause its Affiliates to, promptly request (to the extent it has not already done so prior to the date of this Agreement) any Person that has executed a confidentiality or non-disclosure agreement in connection with any actual or potential Company Takeover Proposal that remains in effect as of the date of this Agreement to return or destroy all confidential information of Company or its Affiliates in the possession of such Person or its Representatives. Company shall not, and shall cause its Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, (1) any standstill provision in any agreement to which Company or any of its Affiliates is a party or (2) any confidentiality provision in any agreement to which Company or any of its Affiliates is a party other than, with respect to this clause (2), any waiver, amendment, modification or permission under a confidentiality provision that does not, and would not be reasonably likely to, facilitate, knowingly encourage or relate in any way to a Company Takeover Proposal or a potential Company Takeover Proposal. Company shall, and shall cause its Affiliates to, enforce the confidentiality and standstill provisions of any such agreement, and Company shall, and shall cause its Affiliates to, immediately take all steps within their power necessary to terminate any waiver that may have been heretofore granted, to any Person other than Parent or any of Parent’s Affiliates, under any such provisions.
(c) Notwithstanding anything to the contrary contained in Section 6.8(a), if at any time after the date of this Agreement and prior to obtaining the Requisite Shareholder Approval, Company or any of its Representatives, receives a bona fide, unsolicited written Company Takeover Proposal from any Person that did not result from Company’s, its Affiliates’ or their respective Representatives’ breach of Section 6.8, and if the board of directors of Company determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Company Takeover Proposal constitutes or is reasonably expected to lead to a Superior Proposal and that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, then Company and its Representatives may, (A) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to Company and its Subsidiaries to the Person who has made such Company Takeover Proposal and its Representatives; provided, that Company shall concurrently with the delivery to such Person provide to Parent any non-public information concerning Company or any of its Subsidiaries that is provided or made available to such Person or its Representatives unless such non-public information has been previously provided to Parent and (B) engage in or otherwise participate in discussions or negotiations with the Person making such Company Takeover Proposal and its Representatives regarding such Company Takeover Proposal. Company shall promptly (and in any event within one (1) Business Day) notify Parent if Company furnishes non-public information and/or enters into discussions or negotiations as provided in this Section 6.8(c).
(d) Company shall promptly (and in no event later than one (1) Business Day after receipt) notify Parent in writing in the event that Company or any of its Representatives receives a Company Takeover Proposal or a request for information relating to Company or its Subsidiaries that is reasonably likely to lead to or that contemplates a Company Takeover Proposal, including the identity of the Person making the Company Takeover Proposal and the material terms and conditions thereof (including an unredacted copy of such Company Takeover Proposal or, where such Company Takeover Proposal is not in writing, a description of the terms thereof). Company shall keep Parent reasonably informed, on a current basis, as to the status of (including any developments, discussions or negotiations) such Company Takeover Proposal (including by promptly (and in no event later than one (1) Business Day after receipt) providing to Parent copies of any written correspondence, proposals, indications of interest, and/or draft agreements relating to such Company Takeover Proposal). Company agrees that it and its Affiliates will not enter into any agreement with any Person subsequent to the date of this Agreement Date which prohibits Company from providing any information to Parent in accordance with, or otherwise complying with, this Section 6.8.
(e) Except as expressly permitted by Section 6.8(f), the board of directors of Company shall not (i) (A) change, qualify, withhold, withdraw or modify, or authorize or publicly propose to change, qualify, withhold, withdraw or modify, in each case in a manner adverse to Parent, the Company Board Recommendation or (B) adopt, approve or recommend to shareholders of Company, or publicly propose to adopt, approve or recommend to shareholders of Company, a Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”), or (ii) authorize, cause or permit Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement (including an acquisition agreement, merger agreement, joint venture agreement or other agreement), commitment or agreement in principle with respect to any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.8(c)) (a “Company Acquisition Proposal. If any Agreement”).
(f) Notwithstanding anything to the contrary set forth in the preceding Section 6.8(e), if prior to the time the Requisite Shareholder Approval is obtained, but not after, in response to the receipt of a bona fide, unsolicited written Company RepresentativeTakeover Proposal subsequent to the date of this Agreement, whether the board of directors of Company determines in his or her capacity as such or in any other capacitygood faith, takes any action after consultation with its financial advisor and outside legal counsel, that (i) the Company is obligated Takeover Proposal did not result from a breach of Section 6.8, (ii) the Company Takeover Proposal constitutes a Superior Proposal and (iii) the failure to approve or recommend such Superior Proposal, or enter into a definitive agreement relating to such Superior Proposal, would be inconsistent with the directors’ fiduciary duties under applicable Law, the board of directors of Company may, subject to compliance with this Section 6.8, (1) effect a Company Adverse Recommendation Change or (2) terminate this Agreement in order to enter into a definitive agreement relating to such Superior Proposal upon (and subject to) paying the Termination Fee in accordance with Section 8.3; provided, however, that prior to so effecting a Company Adverse Recommendation Change or terminating this Agreement pursuant to this Section 6.1 6.8(f), (A) Company has given Parent at least five (5) Business Days’ prior written notice of its intention to take such action, and specifying the reasons therefor, including the terms and conditions of, and the identity of the Person making, any such Superior Proposal and has contemporaneously provided to Parent a copy of the Superior Proposal, a copy of any proposed Company Acquisition Agreements and a copy of any financing commitments relating thereto (or, in each case, if not provided in writing to Company, a written summary of the terms thereof), (B) Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose revisions to the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal, (C) upon the end of such notice period, the board of directors of Company Representative not shall have considered in good faith any revisions to takethe terms of this Agreement proposed in writing by Parent, then and shall have determined, after consultation with its financial advisor and outside legal counsel, that the Superior Proposal would nevertheless continue to constitute a Superior Proposal if the revisions proposed by Parent were to be given effect and that the failure to approve or recommend such Superior Proposal, or enter into a definitive agreement relating to such Superior Proposal, would be inconsistent with the directors’ fiduciary duties under applicable Law, and (D) in the event of any change to any of the material financial terms (including the form, amount and timing of payment of consideration) or any other material terms of such Superior Proposal, Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (A) above of this proviso and a new notice period under clause (A) of this proviso shall commence during which time Company shall be deemed for all purposes required to comply with the requirements of this Agreement Section 6.8(f) anew with respect to have breached such additional notice, including clauses (A) through (D) above of this proviso; and provided, further, that Company has complied in all material respects with its obligations under this Section 6.16.8. Notwithstanding anything to the contrary contained herein, neither Company nor any Company Subsidiary shall enter into any Company Acquisition Agreement unless this Agreement has been terminated in accordance with its terms.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Triumph Bancorp, Inc.)
No Solicitation. (a) From and after the date of this Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII7, neither the no Group Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders members, stockholders (other than stockholders of Parent) or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, knowingly entertain, knowingly encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition ProposalProposal (as hereinafter defined), (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, Proposal or (v) submit enter into any Acquisition Proposal other transaction or series of transactions not in the ordinary course of the Company’s business, the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the vote of any shareholders of Company or any SubsidiaryClosing. Each of the Group Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 5.1 not to cause authorize or permit such Company Representative not to take, then the Company Parent shall be deemed for all purposes of this Agreement to have breached this Section 6.15.1.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (ShoreTel Inc), Membership Interest Purchase Agreement (Novation Companies, Inc.)
No Solicitation. (a) The Company shall, and shall cause the Company Subsidiaries and the Company’s Representatives to, immediately cease and terminate, or cause to be terminated, any and all discussions, solicitations, negotiations or knowing encouragements with any Person conducted heretofore with respect to a Company Acquisition Proposal and shall promptly request (or, to the extent the Company is contractually permitted to do so, require) the return or destruction of all copies of confidential information previously provided to such parties by or on behalf of the Company, the Company Subsidiaries or the Company’s Representatives. From and after the date of this Agreement Date until the Closing earlier of the Effective Time or the termination of this Agreement pursuant in accordance with Section 9.01, subject to Article VIIISection 7.03(b), neither the Company nor any of its Subsidiaries nor any of shall not, and shall cause the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of Subsidiaries and the foregoing collectively being the “Company Representatives”) Company’s Representatives not to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support cause or induce knowingly facilitate or encourage (including by way of furnishing information) the making, submission or announcement of any inquiryinquiries, expression of interest, proposal proposals or offer offers or any other efforts or attempts that constitutes, constitute or would may reasonably be expected to lead toto any Company Acquisition Proposal, or engage in any discussions or negotiations with respect thereto or otherwise cooperate with or assist or participate in, or knowingly facilitate or encourage, any such inquiries, proposals, discussions or negotiations, or resolve to or publicly propose to take any of the foregoing actions, (ii) approve or recommend, or resolve to or publicly propose to approve or recommend, any Company Acquisition Proposal or enter into any merger agreement, agreement-in-principle, letter of intent, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar agreement relating to a Company Acquisition Proposal or enter into any letter of intent, agreement or agreement-in-principle requiring the Company (whether or not subject to conditions) to abandon, terminate or fail to consummate the Merger or (iii) (A) withdraw, modify or qualify in a manner adverse to Parent or Merger Sub the Company Board Recommendation or the approval or declaration of advisability by the Company Board of this Agreement and the Transactions (including the Merger) or (B) approve or recommend, or resolve to or publicly propose to approve or recommend, any Company Acquisition Proposal (any action described in clause (A) or (B) being referred to as an “Adverse Recommendation Change”).
(b) Notwithstanding anything to the contrary contained in Section 7.03(a), if at any time following the date of this Agreement and prior to obtaining the Company Stockholder Approval, (i) the Company has received from a third party that is not in violation of such third party’s contractual obligations to the Company a written, bona fide Company Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as a breach by the Company of this Section 7.03 has not contributed to the existence making of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an such Company Acquisition Proposal, (iii) agree the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (iv) after consultation with its outside counsel, the Company Board determines in good faith that failure to take such action would constitute a breach by the Company Board of its fiduciary duties to the Company Stockholders under applicable Law, then the Company may, subject to clauses (x), (y) and (z) below, (A) furnish confidential information with respect to the Company and the Company Subsidiaries to the Person making such Company Acquisition Proposal and (B) participate in discussions or negotiations with the Person making such Company Acquisition Proposal regarding such Company Acquisition Proposal; provided, however, that (x) the Company will not, and will not allow the Company’s Representatives to, acceptdisclose any non-public information to such person unless the Company first enters into an Acceptable Confidentiality Agreement with such Person, approve(y) the Company will promptly (and in any event within twenty-four (24) hours) provide to Parent notice of its intention to enter into such Acceptable Confidentiality Agreement and (z) the Company will promptly (and in any event within twenty-four (24) hours) provide to Parent any and all non-public information delivered to such Person which was not previously provided to Parent.
(c) The Company shall promptly (and in any event within twenty-four (24) hours) notify Parent, endorse orally and in writing, in the event that the Company or recommend any Company Subsidiary or Company Representative receives (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommendi) any Company Acquisition Proposal or indication by any Person that it is considering making a Company Acquisition Proposal, (ivii) any request for non-public information in contemplation of a Company Acquisition Proposal relating to the Company or any Company Subsidiary or (iii) any inquiry or request for discussions or negotiations regarding any Company Acquisition Proposal. The Company shall provide Parent promptly (and in any event within twenty-four (24) hours) with the identity of such Person and a copy of such Company Acquisition Proposal, indication, inquiry or request (or, where such Company Acquisition Proposal is not in writing, a written description of the Company’s understanding of the material terms and conditions of such Company Acquisition Proposal, indication, inquiry or request), including any modifications thereto. The Company shall keep Parent reasonably informed (orally and in writing) on a current basis (and in any event no later than twenty-four (24) hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any Company Acquisition Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any material modification thereto), and any material developments, discussions and negotiations, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting the foregoing, the Company shall promptly (and in any event within twenty-four (24) hours) notify Parent orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Company Acquisition Proposal in accordance with Section 7.03(b) and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice. The Company shall not, and shall cause the Company Subsidiaries and the Company’s Representatives not to, enter into any letter Contract with any Person subsequent to the date of intent this Agreement that would restrict the Company’s ability to provide such information relating to the Company or any other Company Subsidiary to Parent, and neither the Company nor any of the Company Subsidiaries is currently party to any Contract contemplating or otherwise that prohibits the Company from providing the information relating to the Company or any Company Subsidiary described in this Section 7.03(c) to Parent. The Company (x) shall not, and shall cause the Company Subsidiaries not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement to which it or any of the Company Subsidiaries is or becomes a party and (y) shall, and shall cause the Company Subsidiaries to, use commercially reasonable efforts to enforce the provisions of any such agreement, unless, in each case in clauses (x) and (y), the Company Board determines in good faith, after consultation with its outside counsel, that failure to take such action would constitute a breach by the Company Board of its fiduciary duties to the Company Stockholders under applicable Law.
(d) Notwithstanding anything in Section 7.03(a) to the contrary, if (i) the Company receives from a third party that is not in violation of such third party’s contractual obligations to the Company a written, bona fide Company Acquisition Proposal, or (vii) submit any a breach by the Company of this Section 7.03 has not contributed to the making of such Company Acquisition Proposal and (iii) the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Company Acquisition Proposal constitutes a Superior Proposal after giving effect to all of the adjustments to the vote terms of this Agreement which may be offered by Parent including pursuant to clause (III) below, the Company Board may at any time prior to the Company Stockholder Approval, if it determines in good faith, after consultation with its outside counsel, that failure to take such action would constitute a breach by the Company Board of its fiduciary duties to the Company Stockholders under applicable Law, (x) effect an Adverse Recommendation Change 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 (A) pays, or causes to be paid, the Termination Fee to Parent in immediately available funds and (B) concurrently with such termination enters into the Alternative Acquisition Agreement; provided, further, however, that the Company Board may not effect an Adverse Recommendation Change pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) unless (I) the Company shall not have breached this Section 7.03 in a manner that contributed to the making of such Superior Proposal, (II) the Company shall have provided to Parent at least five (5) Business Days prior written notice of its intention to take such action with respect to such Superior Proposal, which notice shall specify the material terms and conditions of any shareholders such Superior Proposal (including the identity of the party making such Superior Proposal), and shall have contemporaneously provided to Parent a copy of any proposed definitive agreement(s) with respect to such Superior Proposal (the “Alternative Acquisition Agreement”), (III) prior to effecting such Adverse Recommendation Change or terminating this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, the Company shall, and shall cause its financial advisors and outside counsel to, during the five (5) Business Day 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 Company Acquisition Proposal ceases to constitute a Superior Proposal and (IV) following any negotiation described in the immediately preceding clause (III), such Company Acquisition Proposal (taking into account any changes to the terms of this Agreement agreed to or proposed by Parent as a result of the negotiations required by clause (III) in a binding written offer) continues to constitute a Superior Proposal. In the event of any Subsidiary. Each material revisions to the terms of a Company Acquisition Proposal after the start of the five (5) Business Day notice period, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 7.03(d) with respect to such new written notice, and the five (5) Business Day notice period shall be deemed to have re-commenced on the date of such new notice.
(e) Notwithstanding anything in Section 7.03(a) to the contrary, if (i) a material development or change in circumstances in the business, results of operations or financial condition of the Company and the Company Subsidiaries (other than and not related to an Acquisition Proposal) that was neither known to nor reasonably foreseeable by the Company Board (assuming, for such purpose, reasonable consultation with the executive officers of the Company) as of the date of this Agreement occurs or arises after the date of this Agreement (such development or change, an “Intervening Event”), (ii) the Intervening Event did not result or arise from a breach of any provision of this Agreement, and (iii) the Company Board determines in good faith, after consultation with its Subsidiaries will immediately cease and cause outside counsel, that, in light of the existence of such Intervening Event, the failure to be terminated make an Adverse Recommendation Change would constitute a breach by the Company Board of its fiduciary duties to the Company Stockholders under applicable Law, the Company Board may, at any and all existing activities, discussions or negotiations with any Persons conducted time prior to or on the Agreement Date Company Stockholder Approval, effect an Adverse Recommendation Change, provided that that the Company Board shall not make an Adverse Recommendation Change in light of the existence of such Intervening Event unless (A) the Company has provided to Parent at least five (5) Business Days prior written notice of its intention to take such action with respect to such Intervening Event, which notice shall specify, in reasonable detail, the facts underlying the Company Board’s determination that an Intervening Event has occurred and the rationale and basis for such Adverse Recommendation Change, (B) the Company shall, and shall cause its financial advisors and outside counsel to, during such five (5) Business Day 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 as to obviate the need for an Adverse Recommendation Change as a result of the Intervening Event and (C) following any Acquisition Proposal. If any negotiation described in the immediately preceding clause (B), the Company RepresentativeBoard determines in good faith, whether in his or her capacity as such or in any other capacityafter consultation with its outside counsel, takes any action that the failure to make such Adverse Recommendation Change in light of such Intervening Event (taking into account any changes to the terms of this Agreement agreed or proposed by Parent as a result of the negotiations required by the immediately preceding clause (B)) would constitute a breach of its fiduciary duties to the Company is obligated pursuant to this Section 6.1 to cause Stockholders under applicable Law. In the event of any material change in the circumstances of such Company Representative not to takeIntervening Event or the occurrence of another Intervening Event, then the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 7.03(e) with respect to such new written notice.
(f) The Company agrees that any breaches of the restrictions set forth in this Section 7.03 by any of the Company’s Representatives shall be deemed for all purposes to be a breach of this Agreement to have breached (including this Section 6.17.03) by the Company.
(g) Nothing contained in this Section 7.03 shall prohibit the Company Board from taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that any disclosure other than (i) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, (ii) an express rejection of any applicable Company Acquisition Proposal or (iii) an express reaffirmation of the Company Board Recommendation together with a factual description of events or actions leading up to such disclosure that have been taken by the Company and that are permitted under Section 7.03 or actions taken or notices delivered to Parent by the Company that are required by Section 7.03, shall, in each case, be deemed to be an Adverse Recommendation Change (including for purposes of Section 9.01(f)).
(h) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the provisions of “control share acquisitions” contained in any Anti-Takeover Law or otherwise cause such restrictions not to apply, in each case unless such actions are taken simultaneously with a termination of this Agreement pursuant to Section 9.01(h).
Appears in 2 contracts
Sources: Merger Agreement (National Semiconductor Corp), Merger Agreement (Texas Instruments Inc)
No Solicitation. From and after During the Agreement Date until the Closing Term, each Stockholder will not, --------------- nor shall it permit or termination of this Agreement pursuant to Article VIII, neither the Company nor authorize any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliatesemployees, shareholders agents or employees or any investment bankerrepresentatives (collectively, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company "Representatives”") to, (i) solicit --------------- or initiate, or encourage, directly or indirectly, (i) solicitany inquiries regarding the submission of, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public information or date with respect to, or take any other action regarding, to knowingly facilitate the making of any inquiry, expression of interest, proposal or offer that constitutes, or would may reasonably be expected to lead to, an any Acquisition Proposal, Proposal or (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating agreement with respect to any Acquisition Proposal, Proposal or (v) submit approve or agree or resolve to approve any Acquisition Proposal to the vote Proposal. Upon execution of any shareholders of Company or any Subsidiary. Each of the Company this Agreement, each Stockholder will, and it will cause its Subsidiaries will Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons parties conducted prior to or on the Agreement Date heretofore with respect to any of the foregoing. Each Stockholder will promptly (and in any event, within 24 hours) advise the Company orally and in writing of any request for information or the submission or receipt of any Acquisition Proposal, or any inquiry with respect to or which could lead to any Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry and the identity of the person making any such request, Acquisition Proposal or inquiry and such Stockholder's response or responses thereto. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.This
Appears in 2 contracts
Sources: Voting Agreement (Manhattan Acquisition Corp), Voting Agreement (Manhattan Acquisition Corp)
No Solicitation. From (a) The Company shall, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any shall cause each of its Subsidiaries nor any Representatives and each of the Company Shareholders will, nor will any of them authorize or permit any other Acquired Companies (and each of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted on or prior to or on the date of this Agreement Date with respect to any Acquisition Proposal. If , and shall promptly after the date of this Agreement instruct each Person that has in the twelve months prior to the date of this Agreement executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of the Company to promptly return or destroy in accordance with the terms of such confidentiality agreement all information, documents and materials relating to the Acquisition Proposal or to the Acquired Companies and their businesses previously furnished by or on behalf of the Acquired Companies or any of their respective Representatives to such Person or such Person’s Representatives.
(b) Subject to this Section 6.03, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, the Company Representativeshall not, whether in his and shall cause each of the other Acquired Companies not to (and the Company shall direct its Representatives not to and shall cause each of the Acquired Companies to direct each of their respective Representatives not to), directly or her capacity as such indirectly, (i) solicit, initiate, seek or in any other capacity, takes knowingly encourage or facilitate or take any action to solicit, initiate or seek or knowingly encourage or facilitate any inquiry, expression of interest, proposal or offer that constitutes an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Parent, (iii) furnish to any Person other than Parent any non-public information that the Company believes or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal, (iv) accept any Acquisition Proposal or enter into any agreement, letter of intent or Contract providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal (other than a confidentiality agreement as contemplated by Section 6.03(d)) or (v) submit any Acquisition Proposal or any matter related thereto to the vote of the stockholders of the Company.
(c) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, the Company shall promptly (and in any event within 24 hours) provide Parent with: (i) an oral and a written description of any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal (including any modification thereto), or any request for information that could reasonably be expected to lead to an Acquisition Proposal , that is obligated received by an Acquired Company or any Representative of any Acquired Company from any Person (other than Parent) including in such description the identity of the Person from which such inquiry, expression of interest, proposal, offer or request for information was received (the “Other Interested Party”); and (ii) a copy of each written communication and a summary of each oral communication transmitted on behalf of the Other Interested Party or any of its Representatives to any Acquired Company or any Representative of any Acquired Company or transmitted on behalf of any Acquired Company or any Representative of any Acquired Company to the Other Interested Party or any of its Representatives (including any communications related to the proposed amount or form of consideration, financing terms, if any, and closing conditions), in each case, to the extent such communication constitutes a material development with respect to an Acquisition Proposal or a potential Acquisition Proposal. Without limiting the foregoing, the Company shall promptly (and in any event within 24 hours) notify Parent orally and in writing if the Company determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 6.03(d).
(d) Notwithstanding Section 6.03(b), if at any time prior to the adoption of this Agreement by the Required Company Stockholder Approval, (i) the Company has received a bona fide written Acquisition Proposal from a third party, (ii) neither any Acquired Company nor any of their respective Representatives shall have directly or indirectly violated any of the restrictions set forth in Section 6.1 6.03 in a manner that resulted in the submission of such Acquisition Proposal, (iii) the Company Board of Directors determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes or is reasonably likely to cause lead to a Superior Proposal and (iv) after consultation with its outside counsel, the Company Board of Directors determines in good faith that such action is necessary to comply with its fiduciary duties to the stockholders of the Company Representative not to takeunder Applicable Law, then the Company may take the following actions: (A) furnish information with respect to the Acquired Companies 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 not, and shall not allow any other Acquired Company or any Representative of any Acquired Company to, disclose any information to such Person without first entering into a confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of any of the Acquired Companies, provided that such confidentiality agreement shall not be required to contain a “standstill” provision and (y) shall promptly provide to Parent or its Representatives any information concerning the Acquired Companies provided to such other Person which was not previously provided to Parent.
(e) Notwithstanding anything to the contrary contained in Section 6.02(b) or this Section 6.03, at any time prior to the adoption of this Agreement by the Required Company Stockholder Approval, the Company Board of Directors may make a Change of Board Recommendation for a reason unrelated to an Acquisition Proposal (it being understood and agreed that any Change of Board Recommendation proposed to be made in relation to an Acquisition Proposal may only be made pursuant to and in accordance with the terms of Section 6.03(f)) if the Company Board of Directors has determined in good faith, after consultation with its outside legal counsel, that, in light of facts, events or circumstances that have developed since the date of this Agreement that were not foreseen or reasonably foreseeable to the Company as of the date of this Agreement (an “Intervening Event”) and taking into account the results of any negotiations with Parent as contemplated by subsection (ii) below and any offer from Parent contemplated by subsection (iii) below, that such action is necessary to comply with the fiduciary duties owed by the Company Board of Directors to the stockholders of the Company under Applicable Law; provided, however, that the Company Board may not withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent pursuant to the foregoing unless:
(i) the Company shall have provided prior written notice to Parent, at least four Business Days in advance (the “Intervening Event Notice Period”), of the Company’s intention to make a Change of Board Recommendation (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Change of Board Recommendation or otherwise give rise to a Triggering Event), which notice shall specify the Company Board of Directors reason for proposing to effect such Change of Board Recommendation;
(ii) prior to effecting such Change of Board Recommendation, the Company shall, and shall cause the Company Representatives to, during the Intervening Event 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 in such a manner that would obviate the need for the Company Board of Directors to effect such Change of Board Recommendation; and
(iii) Parent shall not have, within the aforementioned four Business Day period, made a written, binding and irrevocable (through the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and Merger Sub, and Second Merger Sub that the Company Board of Directors has in good faith determined (after consultation with its outside legal counsel and its financial advisor) would obviate the need for the Company Board of Directors to effect such Change of Board Recommendation.
(f) Notwithstanding anything to the contrary contained in Section 6.02(b) or this Section 6.03, if the Company receives an Acquisition Proposal that the Company Board of Directors determines 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 and conditions of this Agreement that have been delivered to the Company by Parent in writing during the Notice Period provided pursuant to Section 6.03(f), that are binding and have been irrevocably committed to by Parent in writing, the Company Board of Directors may at any time prior to the adoption of this Agreement by the Required Company Stockholder Approval, if the Company Board of Directors determines in good faith, after consultation with outside counsel, that such action is necessary to comply with the fiduciary duties owed by the Company Board of Directors to the stockholders of the Company under Applicable Law, take the following action: (y) effect a Change of Board Recommendation with respect to such Superior Proposal or (z) 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 (z), and any purported termination pursuant to the foregoing clause (z) shall be void and of no force or effect, unless in advance of or concurrently with such termination the Company complies with the provisions of Section 9.01(f) and Section 9.03; 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 (y) or terminate this Agreement pursuant to the foregoing clause (z) unless:
(i) the Company shall have provided prior written notice to Parent, at least four Business Days in advance (the “Notice Period”), of the Company’s intention to take such action with respect to such Superior Proposal (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Change of Board Recommendation or otherwise give rise to a Triggering Event), which notice shall specify 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, including 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 6.03(f) with respect to such new written notice; provided that the Notice Period for any subsequent notice shall be shortened from four Business Days to two Business Days.).
(g) The Company agrees that any action or inaction of any of the Acquired Companies or their respective Representatives that is inconsistent with the provisions set forth in this Section 6.03 shall be deemed for all purposes to be a breach of this Agreement to have breached (including this Section 6.16.03) by the Company; provided, however, that no such action or inaction shall be taken into account for purposes of Section 9.01(e) or Section 9.01(g)(ii) unless the Company shall have permitted (with respect to its officers, directors and employees) or shall have knowingly permitted (with respect to any Representative of the Company who is not a Company officer, director or employee) such action or inaction to occur, and such action or inaction is materially inconsistent with this Section 6.03.
Appears in 2 contracts
Sources: Merger Agreement (Calix, Inc), Merger Agreement (Occam Networks Inc/De)
No Solicitation. From and after Each Stockholder hereby agrees that during the Agreement Date until the Closing or termination term of this Agreement pursuant to Article VIIIit shall not, neither the Company nor and shall not permit any of its Subsidiaries nor any of the Company Shareholders willSubsidiaries, nor will any of them authorize Affiliates or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives to, directly or indirectlyindirectly through another person, (i) solicit, initiate, seek, entertain, initiate or knowingly encourage, or take any other action designed to, or which would reasonably be likely to, result in or facilitate, support any Takeover Proposal or induce the makingmaking or consummation thereof, submission (ii) enter into, continue or announcement otherwise participate in any discussions or negotiations regarding, or furnish to any person any information in connection with, or otherwise cooperate in any way with, any Takeover Proposal or (iii) waive, terminate, modify or fail to enforce any provision of any inquiry“standstill” or similar obligation of any person other than Parent, expression (iv) make or participate in, directly or indirectly, a “solicitation” of interest, proposal “proxies” (as such terms are used in the rules of the U.S. Securities and Exchange Commission) or offer that constitutespowers of attorney or similar rights to vote, or would seek to advise or influence any person with respect to the voting of, any shares of Common Stock in connection with any vote or other action on any matter, other than to recommend that stockholders of the Company vote in favor of the adoption of the Merger Agreement and as otherwise expressly provided in this Agreement, (v) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, or allow any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar Contract constituting or related to, or that is intended to or could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Takeover Proposal, or (vvi) submit agree or publicly propose to do any Acquisition Proposal to of the vote of any shareholders of Company or any Subsidiaryforegoing. Each Stockholder hereby represents that, as of the Company date hereof, it is not engaged in any discussions or negotiations with respect to any Takeover Proposal and its Subsidiaries will agrees immediately to cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons person conducted prior to or on the Agreement Date heretofore with any person other than Parent with respect to any Acquisition possible Takeover Proposal. If any Company Representative, whether in his or her capacity as and will take the necessary steps to inform its Affiliates and Representatives of the obligations undertaken by such or in any other capacity, takes any action that the Company is obligated Stockholder pursuant to this Agreement, including this Section 6.1 to cause such Company Representative not to take, then the Company 4.03. Each Stockholder also agrees that any violation of this Section 4.03 by any of its Affiliates or Representatives shall be deemed for all purposes to be a violation by such Stockholder of this Agreement to have breached this Section 6.14.03.
Appears in 2 contracts
Sources: Voting Agreement (McKesson Corp), Voting Agreement (Per Se Technologies Inc)
No Solicitation. From and after (a) Except as expressly permitted by this Section 5.4, from the Agreement Date until the Closing or termination date of this Agreement pursuant to Article VIIIuntil the earlier of the Effective Time and the Termination Date, neither the Company nor any of agrees that it shall not, and shall cause its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of and its and their respective officersdirectors and officers not to, directors, affiliates, shareholders or employees or any investment banker, attorney or and shall instruct its other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives not to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support initiate or induce knowingly facilitate or encourage the making, making or submission or announcement of any inquiry, expression proposal, offer or indication of interest, proposal or offer interest that constitutes, or would reasonably be expected to lead to, or result in, an Acquisition Alternative Proposal, (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, regarding an Alternative Proposal or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression proposal, offer or indication of interest, proposal or offer interest that constitutes, or would reasonably be expected to lead to, or result in, an Acquisition Alternative Proposal with, or furnish any nonpublic information in connection with an Alternative Proposal to, any Person (or any of its Representatives in their capacity of Representatives of such Person) that has made or, to the knowledge of the Company, is considering making an Alternative Proposal or any inquiry, proposal, offer or indication of interest that would reasonably be expected to lead to, or result in, an Alternative Proposal, (iii) agree toenter into any binding or non-binding letter of intent, acceptmemorandum of understandings, approveagreement in principle, endorse acquisition agreement, merger agreement or recommend other similar agreement providing for an Alternative Proposal (except for confidentiality agreements permitted under Section 5.4(b)) or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into publicly announce an intention or interest to take, any letter of intent the foregoing actions; provided that the Company or the Company Board shall be permitted to grant a waiver of any other Contract contemplating or otherwise relating standstill agreement with any Person to any Acquisition Proposal, or (v) submit any Acquisition permit such Person to make an Alternative Proposal to the vote of any shareholders of Company or any Subsidiary. Each of Board if the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. The Company shall, and shall cause its Subsidiaries will and Representatives to, cease immediately cease and cause to be terminated any and all existing activitiesdiscussions or negotiations, if any, with any Person and its Representatives conducted prior to the date hereof with respect to any Alternative Proposal or inquiry, proposal, offer or indication of interest that would reasonably be expected to lead to an Alternative Proposal and shall promptly (and in any event within one (1) Business Day after the date hereof) terminate access by any such Person and its Representatives to any physical or electronic data room relating to any such discussions or negotiations and promptly (and in any event within five (5) Business Days after the date hereof) request the return or destruction of all non-public information furnished by the Company or on its behalf to any such Person or its Representatives pursuant to any confidentiality agreements entered in the past eighteen (18) months with any such Persons.
(b) Notwithstanding Section 5.4(a), if after the date of this Agreement and prior to the Acceptance Time, the Company receives a written Alternative Proposal that did not result from a material breach of this Section 5.4 and the Company Board determines in good faith after consultation with the Company’s financial advisor and outside legal counsel that (i) such Alternative Proposal constitutes a Superior Proposal or (ii) such Alternative Proposal would reasonably be expected to lead to, or result in, a Superior Proposal (a “Qualifying Proposal”), the Company may take the following actions during the time prior to the Acceptance Time: (A) furnish information (including non-public information) to the third party making such Alternative Proposal (including its Representatives and prospective equity and debt financing sources), if, and only if, prior to so furnishing such information, the third party has executed a customary confidentiality agreement with the Company having provisions as to confidential treatment of information that are not less restrictive in the aggregate to such third party than the confidentiality provisions in the Confidentiality Agreement are to Parent (it being understood that such confidentiality agreement need not contain any “standstill” or similar provisions or otherwise prohibit the making or amendment of any Alternative Proposal); provided that any non-public information concerning the Company or any Subsidiary of the Company provided or made available to the Person making such Alternative Proposal shall, to the extent not previously provided to Merger Sub or Parent, be provided or made available to Merger Sub or Parent prior to or substantially concurrently with it being provided to such Person making such Alternative Proposal, and (B) engage in or otherwise participate in discussions or negotiations with the third party (including its Representatives) with respect to the Qualifying Proposal. The Company shall promptly (and in any event within thirty-six (36) hours) (i) notify Parent in writing if any inquiries, indications of interest, proposals or offers providing for or that would reasonably be expected to lead to, or result in, an Alternative Proposal are received by the Company or any of its Representatives from any Person or group (other than Parent and its Affiliates) and (ii) disclose to Parent the material terms and conditions of any such Alternative Proposal (or inquiry, proposal, offer or indication of interest), including the identity of the Person or Persons conducted prior (and, in the case of a Person owned or managed by one or more funds managed by a financial sponsor, the identity of such financial sponsor, and, in the case of any other Person, the identity of the ultimate parent company of such Person, in each case, to the extent known by the Company) making such Alternative Proposal, or any such inquiry, proposal, offer, or indication of interest. The Company will keep Parent reasonably informed on a reasonably prompt basis (and in any event within thirty-six (36) hours) of all material terms and conditions of, and all material developments relating to, such Alternative Proposal (or inquiry, proposal, offer or indication of interest). The Company shall promptly (and in any event within thirty-six (36) hours) provide Parent summaries of any material terms and conditions conveyed orally between the Agreement Date Company (or any of its Representatives) and the Person or Persons making such Alternative Proposal (or any of their Representatives) relating to such Alternative Proposal (or inquiry, proposal, offer or indication of interest) and copies of any draft agreements, commitment letters (subject to customary redactions of the financial terms of fee letters that do not affect the availability, timing, conditionality, enforceability, termination or aggregate principal amount of the financing relating thereto) or written proposals relating to such inquiry, proposal, offer, indication of interest or Alternative Proposal delivered between the Company (or any of its Representatives) and the Person or Persons making such Alternative Proposal (or any of their Representatives). The Company will not enter into any agreement with any Person that prohibits the Company from providing the information to Parent required under this Section 5.4(b).
(c) Except as expressly permitted by this Section 5.4, the Company Board, including any committee thereof, shall not (i) withdraw or withhold the Company Recommendation or qualify or modify in a manner adverse to Parent, the Company Recommendation (or resolve or publicly propose to do so); (ii) fail to include the Company Recommendation in the Schedule 14D-9 when filed with the SEC or disseminated to the holders of Shares; (iii) (A) if any Alternative Proposal has been publicly disclosed, fail to publicly recommend against such Alternative Proposal within ten (10) Business Days after a request from Parent to do so, or (B) if any tender offer or exchange offer for the outstanding Shares 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 (10) Business Days after such commencement, against acceptance of such tender offer or exchange offer by the Company’s stockholders; (iv) approve, adopt, recommend or declare advisable any Alternative Proposal or publicly propose to approve, adopt, recommend or declare advisable any Alternative Proposal; or (v) approve, adopt, recommend or declare advisable or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (except for confidentiality agreements permitted under Section 5.4(b)) with respect to any Acquisition Alternative Proposal (any such action set forth in the foregoing clauses (i) through (v), a “Change of Recommendation”). Anything to the contrary set forth in this Agreement notwithstanding, prior to the occurrence of the Acceptance Time, the Company Board may, in response to a Superior Proposal. If any , (x) make a Change of Recommendation or (y) cause the Company Representativeto terminate this Agreement pursuant to Section 7.1(f) to accept such Superior Proposal; provided, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated Board shall not be entitled to make such a Change of Recommendation or cause any termination of this Agreement pursuant to this Section 6.1 to cause such Company Representative not to take, then 7.1(f) unless (A) the Company shall have given Parent at least four (4) Business Days’ written notice (a “Superior Proposal Notice”) advising Parent of its intention to make such a Change of Recommendation or terminate this Agreement pursuant to Section 7.1(f), which Superior Proposal Notice shall include a description of the material terms and conditions of the Superior Proposal that is the basis for the proposed action of the Company Board, the identity of the Person or Persons (and, in the case of a Person owned or managed by one or more funds managed by a financial sponsor, the identity of such financial sponsor, and, in the case of any other Person, the identity of the ultimate parent company of such Person, in each case, to the extent known by the Company) making the Superior Proposal and unredacted copies of all proposed definitive agreements to be deemed for entered into in connection with such Superior Proposal and all purposes commitment letters (subject to customary redactions of the financial terms of fee letters that do not affect the availability, timing, conditionality, enforceability, termination or aggregate principal amount of the financing relating thereto) related thereto, if any, (B) the Company shall have (and shall have caused its Representatives to have) negotiated in good faith with Parent and its Representatives (to the extent Parent wishes to negotiate) to enable Parent to make such amendments to the terms of this Agreement as would result in such Alternative Proposal ceasing to be a Superior Proposal or as would permit the Company Board not to effect a Change of Recommendation or terminate this Agreement pursuant to Section 7.1(f) in connection with such Alternative Proposal, and (C) at the end of the four (4)-Business Day period following the delivery of such Superior Proposal Notice (the “Superior Proposal Notice Period”), after taking into account any commitments made by Parent in writing to amend the terms of this Agreement during the Superior Proposal Notice Period, the Company Board, after consultation with the Company’s financial advisor and outside legal counsel, concludes that the Superior Proposal giving rise to the Superior Proposal Notice continues to constitute a Superior Proposal if such amendments were to be given effect and that the failure to either effect a Change of Recommendation or terminate this Agreement and enter into a definitive agreement with respect to such Superior Proposal would be reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law; provided that any change or modifications to the financial terms or other material changes or modifications to the terms of the Superior Proposal shall require an additional notice to Parent and commence a new notice period pursuant to clauses (A), (B) and (C) of two (2) Business Days after the time that Parent receives such additional notice.
(d) Anything to the contrary set forth in this Agreement notwithstanding, prior to the occurrence of the Acceptance Time, the Company Board may, in response to an Intervening Event, make a Change of Recommendation if the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Company Board to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided that the Company Board shall not be entitled to make such a Change of Recommendation unless (i) the Company shall have breached given Parent at least four (4) Business Days’ written notice (an “Intervening Event Notice”) advising Parent of its intention to make such a Change of Recommendation, which Intervening Event Notice shall include a reasonably detailed description of the applicable Intervening Event and the Company shall have (and shall have caused its Representatives to have) negotiated in good faith with Parent and its Representatives (to the extent Parent wishes to negotiate) to enable Parent to make such amendments to the terms of this Section 6.1Agreement as would permit the Company Board not to effect a Change of Recommendation in connection with such Intervening Event and (ii) at the end of the four (4)-Business Day period following the delivery of such Intervening Event Notice (the “Intervening Event Notice Period”), after taking into account any commitments made by Parent in writing to amend the terms of this Agreement during the Intervening Event Notice Period, the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Company Board to make such Change of Recommendation would continue to be reasonably likely to be inconsistent with its fiduciary duties under applicable Law if such amendments were to be given effect, provided that any material change to the events, changes, occurrences or developments constituting the Intervening Event that was previously the subject of such Intervening Event Notice hereunder shall require an additional notice to Parent and commence a new notice period pursuant to clauses (i) and (ii) of two (2) Business Days after the time that Parent receives such additional notice.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board or any committee thereof from (i) complying with its disclosure obligations under applicable Law (including Rule 14d-9 or Rule 14e-2(a) or Item 1012(a) of Regulation M-A under the Exchange Act) or rules and policies of the NASDAQ Stock Market, (ii) issuing a “stop, look and listen” statement pending disclosure of its position thereunder or (iii) making any disclosure to its stockholders if the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Company Board to make such disclosure would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided that (A) no such disclosure described in clause (ii) shall in and of itself, be considered a Change of Recommendation and (B) in no event shall the Company be permitted to make any disclosure that constitutes a Change of Recommendation unless it and the Company Board have complied with Sections 5.4(c) or 5.4(d), as applicable.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Inari Medical, Inc.)
No Solicitation. From and after the date of this Agreement Date until the earlier to occur of the Closing or termination of this Agreement pursuant to Article VIIIits terms, neither the Company nor Seller and the Acquired Companies will not, and the Seller and the Acquired Companies will cause its respective directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly (a) solicit or encourage submission of any of Acquisition Proposal (as defined herein) by any person, entity, or group (other than Buyer and its Subsidiaries nor affiliates, agents and representatives) or (b) participate in any discussions or negotiations with, or disclose any information concerning any of the Company Shareholders willSPR Companies to, nor will or afford access to the properties, books or records of any of them authorize the SPR Companies, or permit otherwise assist or facilitate, or enter into any agreement or understanding with, any person, entity or group (other than Buyer and its affiliates, agents, and representatives) in connection with any Acquisition Proposal with respect to any of their respective officersthe SPR Companies. For purposes of this Agreement, directorsan “Acquisition Proposal” means any proposal or offer relating to (i) the acquisition of any of the assets or properties of any of the SPR Companies, affiliates(ii) any merger, shareholders consolidation, sale or employees license of substantial assets or similar transactions involving any investment banker, attorney of the SPR Companies or other advisor or representative retained (iii) sales by any of them (all the SPR Companies of any membership or other equity interests of the foregoing collectively being SPR Companies. The Acquired Companies and Seller will immediately cease and cause each of their affiliates to immediately cease any and all existing activities, discussion, or negotiations with any parties conducted heretofore with respect to any of the “Company Representatives”foregoing. Each of the Acquired Companies and Seller will promptly (A) notify Buyer if it or any affiliate receives or becomes aware of any proposal or written inquiry or written request for information in connection with an Acquisition Proposal or potential Acquisition Proposal and (B) notify Buyer of the terms and conditions of any such Acquisition Proposal including the identity of the party making an Acquisition Proposal. In addition, from and after the date of this Agreement, until the earlier to occur of the Closing Date or termination of this Agreement pursuant to its terms, the Acquired Companies and Seller will not, and the Acquired Companies and Seller will cause its directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, (i) solicitmake or authorize any public statement, initiate, seek, entertain, encourage, facilitate, recommendation or solicitation in support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of made by any shareholders of Company person, entity or any Subsidiary. Each of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any group (other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1than Buyer).
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (NightHawk Radiology Holdings Inc)
No Solicitation. From and after (a) During the period from the Agreement Date and continuing until the Closing or earlier of the termination of this Agreement pursuant to Article VIIIand the Effective Time, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders willwill not, nor will any of them it authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) its Representatives to, directly or indirectly, (i) solicit, initiatewillingly encourage others to solicit, seek, entertain, or willingly encourage, facilitatefacilitate or accept any discussions, support proposals or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer offers that constitutesconstitute, or would could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each stockholders of the Company. The Company will, and will cause its Subsidiaries will Representatives to, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal and (B) immediately revoke or withdraw access of any Person (other than Parent and its Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company in connection with an Acquisition Proposal and request from each Person (other than Parent and its Representatives) the prompt return or destruction of all non-public information with respect to the Company previously provided to such Person in connection with an Acquisition Proposal. If any Company Representativeof the Company’s Representatives, whether in his his, her or her its capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 6.2 not to cause authorize or permit such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.16.2.
(b) The Company shall promptly (but in any event, within the shorter of one (1) Business Day and 36 hours) notify Parent in writing after receipt by the Company (or, to the Knowledge of the Company, by any of its Representatives), of (i) any Acquisition Proposal, or (ii) any request for non-public information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Parent and its Representatives reasonably expected to be in connection with a potential Acquisition Proposal. Such notice shall describe the material terms and conditions of such Acquisition Proposal. The Company shall keep Parent fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto. The Company shall provide Parent with 48 hours prior notice (or such lesser prior notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board is reasonably expected to discuss any Acquisition Proposal.
Appears in 2 contracts
No Solicitation. From (a) The Company shall not, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of shall cause its Subsidiaries nor any of the Company Shareholders willnot to, nor will any of them and shall not authorize or permit any of their respective its and its Subsidiaries’ directors, officers, directorsemployees, affiliatesadvisors and investment bankers (with respect to any Person, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the Persons are referred to herein as such Person’s “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce knowingly encourage the making, submission or announcement of any inquiryinquiries, expression or the making of interest, any proposal or offer offer, that constitutes, constitutes a Takeover Proposal or would that could reasonably be expected to lead to, an Acquisition to any Takeover Proposal, or, subject to Section 6.04(b), (iii) enter intoconduct, participate engage in, maintain or continue otherwise participate in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingregarding a Takeover Proposal or otherwise cooperate with or knowingly assist, facilitate or encourage any such discussions or negotiations, or deliver or make available to any Person provide any non-public information with respect toor data to any Person relating to the Company or any of its Subsidiaries, or take afford to any other action regardingPerson access to the business, properties, assets, books or records or personnel of the Company or any of its Subsidiaries (except to notify such Person of the existence of the provisions of this Section 6.04), (ii) approve or recommend, or publicly propose to approve or recommend, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Takeover Proposal, (iii) agree togrant any waiver, acceptamendment or release under any standstill or confidentiality agreement, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any agreement in principle, letter of intent intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or any other Contract contemplating or otherwise similar definitive agreement relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). Except as set forth in Section 6.04(b), neither the Company Board nor any committee thereof shall withdraw, amend, modify or materially qualify in a manner adverse to Parent or Merger Sub, or fail to make the Company Board Recommendation, or recommend a Takeover Proposal, or (v) submit make any Acquisition Proposal public statement inconsistent with the Company Board Recommendation, or resolve or agree to the vote of take any shareholders of Company or any Subsidiary. Each of the foregoing actions (any of the foregoing, a “Company Adverse Recommendation Change”). The Company shall, and shall cause its Subsidiaries will to cease immediately cease and cause to be terminated terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations negotiations, if any, with any Persons third party conducted prior to or on the Agreement Date date hereof with respect to any Acquisition Proposal. If Takeover Proposal until such time, if any, as this Agreement is terminated in accordance with its terms.
(b) Notwithstanding anything to the contrary contained in this Agreement, prior to the Offer Closing, the Company Board, directly or indirectly through any Company Representative, whether may if neither the Company nor its Subsidiaries, nor their respective Representatives, are in his breach of this Section 6.04, (i) participate in negotiations or her capacity as discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or is reasonably expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement, (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate this Agreement in any other capacityaccordance with the terms of Section 8.04(a), takes and/or (v) take any action that any court of competent jurisdiction orders the Company is obligated pursuant to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Notwithstanding the foregoing provisions of this Section 6.1 6.04(b), the Company Board may, at any time, so long as it is not in breach of this Section 6.04, withdraw, modify or amend the Company Board Recommendation and terminate this Agreement if the Company Board determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause such Company Representative not to take, then the Company Board to be in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law, provided, however, that any disclosure other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, (B) an express rejection of any applicable Takeover Proposal, or (C) an express reaffirmation of its recommendation to its stockholders in favor of the Offer and the Merger shall be deemed for all purposes of this Agreement to have breached this Section 6.1be a Company Adverse Recommendation Change; provided, that any disclosure made by the Company other than as set forth in (A) through (C) above shall not be a Company Adverse Recommendation Change if after such disclosure the Company Board expressly publicly reaffirms the Company Board Recommendation within three (3) Business Days following a request from Parent.
Appears in 2 contracts
Sources: Merger Agreement (Randstad North America, L.P.), Merger Agreement (SFN Group Inc.)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, The Company agrees that neither the Company it nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or agents and representatives (including any investment banker, attorney or other advisor or representative accountant retained by it or any of its Subsidiaries), and any party to a Stockholder Agreement shall, and that the Company shall use reasonable efforts to cause its and its Subsidiaries' other employees and affiliates not to (and shall not authorize any of them (all of the foregoing collectively being the “Company Representatives”to) to, directly or indirectly, : (i) solicit, initiate, seek, entertain, encourage, facilitate, support knowingly facilitate or induce any inquiry with respect to, or the making, submission or announcement of of, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected Acquisition Proposal (as defined in Section 5.3(f)) with respect to lead to, an Acquisition Proposalitself, (ii) enter into, participate in, maintain or continue engage in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public nonpublic information with respect to, or take any other action regarding, to facilitate any inquiry, expression inquiries or the making of interest, any proposal that constitutes or offer that constitutes, or would may reasonably be expected to lead to, an any Acquisition ProposalProposal with respect to itself, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition ProposalProposal with respect to itself (except to the extent specifically permitted pursuant to Section 5.3(d)), or (iv) enter into any letter of intent or similar document or any other Contract or commitment contemplating or otherwise relating to any Acquisition Proposal, Proposal or (v) submit any Acquisition Proposal transaction contemplated thereby with respect to the vote of any shareholders of Company or any Subsidiaryitself. Each of the The Company and its Subsidiaries and any of their respective officers, directors, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries), and any party to a Stockholder Agreement will immediately cease cease, and the Company shall use reasonable efforts to cause its and its Subsidiaries' other employees and affiliates to be terminated cease, any and all existing activities, discussions or negotiations with any Persons third parties (other than Parent, Merger Sub and their representatives) conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant Proposal with respect to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1itself.
Appears in 2 contracts
Sources: Merger Agreement (Probusiness Services Inc), Merger Agreement (Automatic Data Processing Inc)
No Solicitation. From and after (a) The Company agrees that, following the Agreement Date until the Closing or termination date of this Agreement and prior to the earlier of the Acceptance Time or the date on which this Agreement is terminated pursuant to Article VIIIVIII hereof, neither the Company it nor any of its Subsidiaries nor any shall, and that it shall use its reasonable efforts to cause its and each of the Company Shareholders will, nor will any of them authorize or permit any of their respective its Subsidiaries’ officers, directors, affiliatesemployees, shareholders or employees or any investment bankeradvisors and agents and representatives (collectively, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) not to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support knowingly solicit or induce the making, submission or announcement of initiate any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition ProposalAlternative Transaction Proposal (as defined in Section 5.2(f)(ii)), (ii) enter into, participate in, maintain provide any information or continue data to any communications person relating to or in connection with an Alternative Transaction Proposal (except solely to provide written notice as to disclose the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression the provisions of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposalthis Section 5.2), (iii) engage in any discussions or negotiations concerning an Alternative Transaction Proposal, or otherwise knowingly take any action to facilitate or encourage any effort or attempt to make or implement an Alternative Transaction Proposal (including providing the approval required under the Rights Agreement or Section 203 of the DGCL, amending the Rights Agreement, or failing to enforce or amending any standstill or similar agreement), (iv) approve, recommend, agree to, to or accept, or propose publicly to approve, endorse recommend, agree to or recommend (or publicly propose or announce any intention or desire to agree to, accept, any Alternative Transaction Proposal, (v) approve, endorse or recommend) any Acquisition Proposal, (iv) agree to or accept, or propose to approve, endorse, recommend, agree to or accept, or execute or enter into into, any letter of intent intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any other Contract contemplating Alternative Transaction Proposal or (vi) except as permitted pursuant to Section 5.2(d), withdraw, modify or otherwise relating change in a manner adverse to any Acquisition Proposal, Parent or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of Merger Sub the Company Board Recommendation. The Company agrees that it and its Subsidiaries Representatives will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons persons conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If Alternative Transaction Proposal (except with respect to the Transactions) and request the destruction or return of any Company Representative, whether in his information provided under any nondisclosure or her capacity similar agreements with any party other than the Confidentiality Agreement.
(b) As promptly as such or practicable (and in any other capacityevent within twenty-four (24) hours) after receipt of any Alternative Transaction Proposal or any request for nonpublic information or any inquiry relating in any way to, takes or that could reasonably be expected to result in, an Alternative Transaction Proposal, the Company shall provide Parent with written notice of the material terms and conditions of such Alternative Transaction Proposal, request or inquiry, including the identity of the person or group of persons making such Alternative Transaction Proposal (the “Acquiring Person”) and copies of any action related correspondence and written material provided to the Company and written summaries of any related material oral communications. In addition, the Company shall provide Parent as promptly as possible (and in any event within twenty-four (24) hours) with written notice setting forth all such information as is reasonably necessary to keep Parent informed in all material respects of all communications regarding, and the status and details (including copies of any correspondence and written material provided to the Company and material amendments or proposed material amendments) of, any such Alternative Transaction Proposal, request or inquiry.
(c) Notwithstanding anything to the contrary contained in Section 5.2(a), in the event that, prior to the Acceptance Time, the Company receives an unsolicited, bona fide written Alternative Transaction Proposal not resulting from a breach of Section 5.2(a) which is determined (in accordance with Section 5.2(f)(iii)) to be, or, in the good faith determination of the Company Board, is reasonably likely to become, a Superior Proposal (as defined in Section 5.2(f)(iii)), it may then take the following actions (but only if and to the extent that (x) the Company Board has concluded in good faith, after consultation with its outside legal counsel, that the failure to do so would be inconsistent with its fiduciary obligations under applicable Law and (y) the Company is obligated has given Parent at least two (2) Business Days prior written notice of its intention to take such actions and of the identity of the Acquiring Person making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal (including copies of all documents relating thereto)):
(i) Furnish nonpublic information to the Acquiring Person making such Alternative Transaction Proposal, provided that (i) prior to furnishing any such nonpublic information, the Company receives from such Acquiring Person an executed confidentiality agreement containing terms at least as restrictive with respect to such Acquiring Person as the terms contained in the Confidentiality Agreement and (ii) simultaneously with providing such Acquiring Person with any material not previously provided to Parent, provide Parent with such materials; and
(ii) Engage in discussions or negotiations with such Acquiring Person with respect to such Alternative Transaction Proposal.
(d) Notwithstanding anything in this Agreement to the contrary, at any time prior to the Acceptance Time, the Company Board may, if it concludes in good faith (after consultation with its outside legal advisors) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law, withdraw, modify or change the Company Board Recommendation in a manner adverse to Parent and Merger Sub (a “Change of Recommendation”); provided that prior to any such Change of Recommendation, the Company shall have given Parent and Merger Sub prompt written notice advising them of the decision of the Company Board to take such action and the reasons therefore, including, in the event the decision relates to an Alternative Transaction Proposal, the material terms and conditions of the Alternative Transaction Proposal; and provided further that in the event the decision relates to an Alternative Transaction Proposal: (i) the Company shall have given Parent and Merger Sub two (2) Business Days after delivery of such notice to propose revisions to the terms of this Agreement (or make another proposal) and if Parent and Merger Sub propose to revise the terms of this Agreement, the Company shall have, during such period, negotiated in good faith with Parent and Merger Sub with respect to such proposed revisions or other proposal (it being agreed that any material changes to any Alternative Transaction Proposal, including any changes to the financial terms of such Alternative Transaction Proposal, shall require a new notice and a new two (2) Business Day period for negotiations); and (ii) the Company Board shall have determined in good faith, after considering the results of such negotiations and giving effect to the proposals made by Parent and Merger Sub, if any (the “Revised Proposal”), that such Alternative Transaction Proposal constitutes a Superior Proposal and in any event that failure to do so would be inconsistent with its fiduciary duties under applicable Law. In the event the Company Board does not make the determination referred to in clause (ii) of this paragraph and thereafter determines to withdraw, modify or change the Company Board Recommendation pursuant to this Section 6.1 5.2(d), the procedures referred to cause such Company Representative not above shall apply anew and shall also apply to takeany subsequent withdrawal, then amendment or change.
(e) Nothing in this Agreement shall prohibit the Company from (i) issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act (after providing prior written notice thereof to the Parent) or (ii) taking and disclosing to its stockholders any position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act or from making any disclosure to the Company’s stockholders (in each case under this clause (ii), that is not a Change of Recommendation, except as permitted pursuant to Section 5.2(d)) if the Company Board (after consultation with its legal advisors), concludes that its failure to do so would be inconsistent with its fiduciary duties under applicable Law.
(f) As used in this Agreement, the following terms shall be deemed for all purposes of this Agreement to have breached this Section 6.1.the following meanings:
Appears in 2 contracts
Sources: Merger Agreement (Osi Pharmaceuticals Inc), Merger Agreement (Astellas Pharma Inc.)
No Solicitation. From (a) HNC shall not, and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of shall cause its Subsidiaries nor any of and the Company Shareholders will, nor will any of them authorize or permit any of their respective officers, directors, affiliatesemployees, shareholders or employees or any investment bankerbankers, attorney or financial advisors, attorneys, accountants, consultants, affiliates and other advisor or representative retained by any of them agents (all of the foregoing collectively being collectively, the “Company Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate, seek, entertain, induce or knowingly encourage, facilitateor take any action to facilitate the making of, support or induce the making, submission or announcement of any inquiry, expression of interest, offer or proposal or offer that which constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, ; (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingregarding any Acquisition Proposal or furnish, or deliver or make available otherwise afford access, to any Person (other than FNFG) any non-public information or data with respect to, to HNC or take any other action regarding, any inquiry, expression of interest, proposal its Subsidiaries or offer that constitutes, or would reasonably be expected otherwise relating to lead to, an Acquisition Proposal, ; (iii) agree torelease any Person from, acceptwaive any provisions of, approve, endorse or recommend (fail to enforce any confidentiality agreement or publicly propose standstill agreement to which HNC is a party; or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any agreement, agreement in principle or letter of intent or any other Contract contemplating or otherwise relating with respect to any Acquisition Proposal, Proposal or (v) submit approve or resolve to approve any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiaryagreement, agreement in principle or letter of intent relating to an Acquisition Proposal. Each Any violation of the Company foregoing restrictions by HNC or any Representative, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of HNC or otherwise, shall be deemed to be a breach of this Agreement by HNC. HNC and its Subsidiaries will shall, and shall cause each of HNC Representatives to, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or negotiations negotiations, and communications with any Persons conducted prior to or on the Agreement Date with respect to any existing or potential Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
Appears in 2 contracts
Sources: Merger Agreement (First Niagara Financial Group Inc), Merger Agreement (Harleysville National Corp)
No Solicitation. From and after (a) During the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIIIInterim Period, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders willSubsidiary shall, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to, or that could reasonably be expected to lead to, any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders Company Stockholders or (vi) enter into any other transaction or series of Company transactions not in the ordinary course of business and consistent with past practice, the consummation of which would impede, interfere with, prevent or any Subsidiary. Each delay, or would reasonably be expected to impede, interfere with, prevent or delay, the consummation of the Transactions. The Company shall, and shall cause its Subsidiaries will Representatives to, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal and (B) immediately revoke or withdraw access of any Person (other than Acquirer and its Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company in connection with an Acquisition Proposal and request from each Person (other than Acquirer and its Representatives) the prompt return or destruction of all non-public information with respect to the Company previously provided to such Person in connection with an Acquisition Proposal. If any Representative of the Company Representative, or any Company Subsidiary (whether in his his, her or her its capacity as such or in any other capacity, ) takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative 5.1(a) not to authorize or permit such Person to take, or to otherwise restrict, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.15.1.
(b) The Company shall immediately (and in any event, within 24 hours) notify Acquirer orally and in writing after receipt by the Company or any Company Subsidiary (or, to the knowledge of the Company, by any of its or their respective Representatives) of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for non-public information relating to the Company or any Company Subsidiary or for access to any of the properties, books or records of the Company or any Company Subsidiary by any Person or Persons other than Acquirer and its Representatives. Such notice shall describe (A) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (B) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request. The Company shall keep Acquirer fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquirer a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. The Company shall provide Acquirer with 48 hours prior notice (or such lesser prior notice as is provided to the members of the Board) of any meeting of the Board at which the Board is reasonably expected to discuss any Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Soundhound Ai, Inc.), Merger Agreement (SentinelOne, Inc.)
No Solicitation. From Except as otherwise expressly permitted under Section 5.09 of the Merger Agreement, from and after the Agreement Date date hereof until the Closing or termination of this Agreement pursuant to Article VIIISection 7 hereof, neither the Company nor any Shareholder, in his, her or its capacity as a shareholder of its Subsidiaries nor any of the Company Shareholders willCompany, shall not, nor will shall such Shareholder authorize any of them authorize or permit any of their respective officerspartner, directorsofficer, affiliatesdirector, shareholders or employees or any investment banker, attorney or other advisor or representative retained by of, such Shareholder or any of them his, her or its affiliates to (all and, to the extent applicable to Shareholder, such Shareholder shall use commercially reasonable efforts to prohibit any of the foregoing collectively being the “Company Representatives”) his, her or its representatives or affiliates to, directly or indirectly), (ia) initiate, solicit, initiate, seek, entertain, induce or knowingly encourage, facilitateor knowingly take any action to facilitate the making of, support or induce the making, submission or announcement of any inquiry, expression of interest, offer or proposal or offer that which constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iib) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingregarding any Acquisition Proposal, or deliver furnish, or make available otherwise afford access, to any Person person (other than Buyer) any non-public information or data with respect to, to Company or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected otherwise relating to lead to, an Acquisition Proposal, (iiic) agree toenter into any agreement, acceptagreement in principle, approveletter of intent, endorse memorandum of understanding or recommend (or publicly propose or announce any intention or desire similar arrangement with respect to agree to, accept, approve, endorse or recommend) any an Acquisition Proposal, (ivd) enter into any letter of intent solicit proxies or any become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to an Acquisition Proposal (other Contract contemplating than the Merger Agreement) or otherwise relating encourage or assist any party in taking or planning any action that would compete with, restrain or otherwise serve to any interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, (e) initiate a shareholders’ vote or action by consent of Company’s shareholders with respect to an Acquisition Proposal, or (vf) submit any Acquisition Proposal to the vote except by reason of any shareholders this Agreement, become a member of Company or any Subsidiary. Each a “group” (as such term is used in Section 13(d) of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date Exchange Act) with respect to any Acquisition Proposal. If any voting securities of Company Representative, whether in his or her capacity as such or in any other capacity, that takes any action that in support of an Acquisition Proposal (other than the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1Merger Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Independent Bank Corp), Merger Agreement (Central Bancorp Inc /Ma/)
No Solicitation. From (a) Subject to Sections 5.3(b)-(h), the ▇▇▇▇▇▇ Parties shall not and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the Company nor any of its Subsidiaries nor any of the Company Shareholders will, nor will any of them authorize or permit any of shall cause their respective officers, directors, affiliatesemployees, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them agents and representatives (all of the foregoing collectively being the “Company Representatives”) not to, and shall use their reasonable best efforts to cause each of the other ▇▇▇▇▇▇ Group Entities and their Representatives not to, directly or indirectly, (i) initiate, solicit, initiateknowingly encourage (including by providing information) or knowingly facilitate any inquiries, seekproposals or offers with respect to, entertainor the making or completion of, encouragean Alternative Proposal (as defined herein), facilitate(ii) engage or participate in any negotiations concerning, support or induce provide or cause to be provided any non-public information or data relating to, the making▇▇▇▇▇▇ Group Entities, submission in connection with, or announcement have any discussions with any person relating to, an Alternative Proposal, or otherwise knowingly encourage or knowingly facilitate any effort or attempt to make or implement an Alternative Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to any Alternative Proposal, (v) amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, (vi) take, encourage or facilitate any action that Section 5.3(a) of the Holdings Agreement would prohibit if the ▇▇▇▇▇▇ Parties were the “Holdings Parties,” as such term is defined and used therein, or (vii) resolve to propose or agree to do any of the foregoing.
(b) The ▇▇▇▇▇▇ Parties shall and shall cause their Representatives to, and shall use their reasonable best efforts to cause each of the other ▇▇▇▇▇▇ Group Entities and their Representatives to, immediately cease any existing solicitations, discussions or negotiations with any Person (other than the parties hereto) that has made or indicated an intention to make an Alternative Proposal. The ▇▇▇▇▇▇ Parties shall promptly, and in any event not later than ten (10) days following the date hereof, request that each Person who has executed a confidentiality agreement with a ▇▇▇▇▇▇ Party in connection with that Person’s consideration of a transaction involving any ▇▇▇▇▇▇ Group Entity that would constitute an Alternative Proposal return or destroy all non-public information furnished to that Person by or on behalf of the ▇▇▇▇▇▇ Group Entities.
(c) Notwithstanding anything to the contrary in Section 5.3(a), prior to the receipt of Unitholder Approval, the ▇▇▇▇▇▇ Parties may, in response to an unsolicited Alternative Proposal which did not result from or arise in connection with a breach of this Section 5.3 and which the Conflicts Committee determines, in good faith, after consultation with its outside counsel and financial advisors, constitutes or could reasonably be expected to result in a Superior Proposal (as defined herein), (i) furnish information with respect to the ▇▇▇▇▇▇ Group Entities to the person making such Alternative Proposal and its Representatives pursuant to an executed confidentiality agreement no less restrictive (including with respect to standstill provisions) of the other party than the Confidentiality Agreement and (ii) participate in discussions or negotiations with such person and its Representatives regarding such Alternative Proposal; provided, however, (A) that Parent shall be entitled to receive an executed copy of such confidentiality agreement prior to or substantially simultaneously with the ▇▇▇▇▇▇ Parties furnishing information to the person making such Alternative Proposal or its Representatives and (B) that the ▇▇▇▇▇▇ Parties shall simultaneously provide or make available to Parent any non-public information concerning the ▇▇▇▇▇▇ Group Entities that is provided to the person making such Alternative Proposal or its Representatives which was not previously provided or made available to Parent. Notwithstanding anything to the contrary in Section 5.3(a), prior to the receipt of Unitholder Approval, the ▇▇▇▇▇▇ Parties may participate in discussions or negotiations with the lenders under the ▇▇▇▇▇▇ Operating Credit Agreement regarding debt financing transactions with such lenders that may involve equity issuances that would constitute an Alternative Proposal and, in connection therewith, furnish information with respect to the ▇▇▇▇▇▇ Group Entities to such lenders pursuant to confidentiality obligations substantially consistent with past practice.
(d) Neither the Board of Directors nor any committee thereof shall withdraw, modify or qualify in a manner adverse to Parent, or resolve to or publicly propose to withdraw, modify or qualify in a manner adverse to Parent, the Recommendation (any of the foregoing actions, whether taken by the Board of Directors or any committee thereof, a “Change in Board Recommendation”). Notwithstanding the immediately preceding sentence, if, prior to receipt of the Unitholder Approval, (i) the Board of Directors or the Conflicts Committee determines in good faith, after consultation with its respective outside counsel and financial advisors, that a Change in Board Recommendation would be in the best interests of the holders of Common Units (other than Partnership GP and its Affiliates (including Holdings)) and (ii) the Board of Directors or the Conflicts Committee, as applicable, provides Parent with at least three (3) Business Days’ advance written notice of its intention to make a Change in Board Recommendation and specifying the material events giving rise thereto, then the Board of Directors or the Conflicts Committee, as applicable, may make a Change in Board Recommendation.
(e) The ▇▇▇▇▇▇ Parties promptly (and in any event within 24 hours) shall advise Parent orally and in writing of the receipt by either of them of (i) any Alternative Proposal or (ii) any request for non-public information relating to the ▇▇▇▇▇▇ Group Entities, other than requests for information in the ordinary course of business consistent with past practice and not reasonably expected to be related to an Alternative Proposal, including in each case the identity of the person making any such Alternative Proposal or request and the material terms and conditions of any such Alternative Proposal or request (including copies of any document or correspondence evidencing such Alternative Proposal or request). The ▇▇▇▇▇▇ Parties shall keep Parent reasonably informed on a current basis of the status (including any material change to the terms thereof) of any such Alternative Proposal or request.
(f) Nothing contained in this Agreement shall prohibit the ▇▇▇▇▇▇ Parties or the Board of Directors or any committee thereof from disclosing to the Partnership’s Unitholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act; provided, however, that none of the ▇▇▇▇▇▇ Parties or the Board of Directors or any committee thereof shall in any event be entitled to disclose a position under Rules 14d-9 or 14e-2(a) promulgated under the Exchange Act other than the Recommendation, except in accordance with Section 5.3(d).
(g) As used in this Agreement, “Alternative Proposal” shall mean any inquiry, expression of interest, proposal or offer that constitutesfrom any Person or group of Persons other than the Parent Parties, relating to, or would that could reasonably be expected to lead to, an Acquisition Proposalin one transaction or a series of related transactions, (i) a merger, tender or exchange offer, consolidation, reorganization, reclassification, recapitalization, liquidation or dissolution, or other business combination involving any ▇▇▇▇▇▇ Group Entity, (ii) enter into, participate in, maintain the issuance by the Partnership of (A) any General Partner Interest or continue (B) any communications (except solely to provide written notice as to the existence class of these provisions) Partnership Interests constituting more than 15% of such class of Partnership Interests or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree tothe acquisition in any manner, acceptdirectly or indirectly, approve, endorse or recommend of (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommendA) any Acquisition ProposalGeneral Partner Interest, (ivB) enter into any letter class of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, Partnership Interests constituting more than 15% of such class of Partnership Interests or (vC) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each more than 15% of the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on consolidated total assets of the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or ▇▇▇▇▇▇ Group Entities (including equity interests in any Subsidiary or Partially Owned Entity of the Partnership), in each case other capacity, takes any action that than the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then Merger and the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1Holdings Merger.
Appears in 2 contracts
Sources: Merger Agreement (Hiland Holdings GP, LP), Merger Agreement (Hiland Partners, LP)
No Solicitation. From and after The Company agrees that none of the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIIICompany, neither the Company nor any of its Subsidiaries nor or any of the Company Shareholders will, nor will Company’s or any of them authorize its Subsidiaries’ officers or permit any of their respective officersdirectors shall, directors, and that it shall use reasonable best efforts to cause the Company’s and its affiliates, shareholders or employees or ’ and Subsidiaries’ agents and representatives (including any investment banker, attorney or other advisor or representative accountant retained by the Company or any of its Subsidiaries) not to (and shall not authorize or permit any of them (all of the foregoing collectively being the “Company Representatives”) to), directly or indirectly, : (i) solicit, initiate, seek, entertain, facilitate or encourage, facilitate, support or induce the making, submission or announcement of any inquiryAcquisition Proposal; (ii) enter into or participate in any discussions or negotiations with, expression furnish any nonpublic information relating to the Company or any of interestits Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any manner with, or assist, participate in, facilitate or encourage any effort by, any Person concerning the making of any proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, an any Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, ; or (iv) execute or enter into into, or agree to execute or enter into, any letter of intent or similar document or any other Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition ProposalProposal or transaction contemplated thereby, except in the case of clauses (ii), (iii) or (viv) submit any Acquisition Proposal to the vote extent specifically permitted pursuant to Sections 5.3(c) or 5.3(d). Immediately following the execution and delivery of any shareholders of Company or any Subsidiary. Each of this Agreement, the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations (including, without limitation, any such activities, discussions or negotiations conducted by affiliates, directors, officers, employees, agents and representatives (including any investment banker, financial advisor, attorney, accountant or other representative) of the Company or any of its Subsidiaries) with any Persons third parties conducted prior to or on the Agreement Date heretofore with respect to the consideration of any Acquisition Proposal. If The Company will exercise any Company Representative, whether rights under any confidentiality or non-disclosure agreements with any such third parties entered into within one year prior to the date hereof through the date hereof in his connection with the consideration of any Acquisition Proposal to require the return or her capacity as such or in any other capacity, takes any action that destruction of non-public information provided prior to the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes date of this Agreement by the Company, its Subsidiaries or their agents and representatives to have breached this Section 6.1any such third parties.
Appears in 2 contracts
Sources: Merger Agreement (Solectron Corp), Merger Agreement (Flextronics International Ltd.)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither the (a) The Company nor any of its Subsidiaries nor any of the Company Shareholders willshall not, nor will any of them shall it authorize or permit any of its Subsidiaries or any of its or their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them Representatives to (all of the foregoing collectively being the “Company Representatives”) and shall use its reasonable best efforts to cause such Persons not to), directly or indirectly, indirectly (i) initiate, induce, solicit, initiate, seek, entertain, encourage, facilitate, support knowingly facilitate or induce knowingly encourage (including by way of furnishing non-public information) any inquiry or the making, submission or announcement of any inquiryproposal that constitutes or would reasonably be expected to lead to a Takeover Proposal, expression (ii) approve, adopt or recommend, or propose to approve, adopt or recommend, any Takeover Proposal or enter into any letter of interestintent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding relating to, or that would reasonably be expected to lead to, any Takeover Proposal, (iii) enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement or breach its obligations hereunder, or propose or agree to do any of the foregoing, (iv) fail to enforce, or grant any waiver under, any standstill or similar agreement with any Person or (v) engage in, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information or data with respect to the Company in connection with or in response to, or otherwise cooperate with or take any other action to facilitate any proposal or offer that (A) constitutes, or would reasonably be expected to lead to, an Acquisition any Takeover Proposal or (B) requires the Company to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement. The Company shall, and shall direct each of its Subsidiaries and each agent or representative of any of the foregoing to, immediately cease any discussions, negotiations, or communications with any party with respect to any Takeover Proposal. Notwithstanding the foregoing, prior to the receipt of the Company Shareholder Approval and Minority Approval, the Company or the Special Committee or its Representative may, in response to a bona fide written Takeover Proposal that did not result from a breach of this Section 5.08(a), and subject to compliance with Section 5.08(c):
(A) contact the party that submitted such Takeover Proposal to clarify the terms and conditions thereof; and
(B) furnish information or data with respect to the Company or any of its Subsidiaries to the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a customary confidentiality agreement, provided that (i) such confidentiality agreement shall not contain any provisions that would prevent the Company from complying with its obligation to provide the required disclosure to Parent pursuant to Section 5.08(b), and (ii) enter intoall such information provided to such Person has previously been provided to Parent or is provided to Parent prior to or concurrently with the time it is provided to such Person; provided, participate inin the case of clause (B), maintain that the Special Committee determines in good faith, by resolution duly adopted by its members after consultation with its outside legal counsel of nationally or continue regionally recognized reputation (including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇) and with its financial advisor of nationally or regionally recognized reputation (including Western Reserve), that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal. The Company shall promptly notify Parent (within two Business Days) in writing of any communications such determination by the Special Committee that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal. The Company shall promptly inform its Representatives of the obligations undertaken in this Section 5.08. Without limiting the foregoing, any violation of the restrictions set forth in this Section 5.08 by any Representative of the Company or any of its Subsidiaries, whether or not such Person is purporting to act on behalf of the Company or any of its Subsidiaries, shall be deemed to be a breach of this Section 5.08 by the Company.
(except solely to provide written notice b) As promptly as to practicable after the existence receipt by the Company of these provisions) any Takeover Proposal or negotiations regarding, or deliver or make available to any Person any non-public information inquiry with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition any Takeover Proposal, and in any case within two Business Days after the receipt thereof, the Company shall provide oral and written notice to Parent of (i) such Takeover Proposal or inquiry, (ii) the identity of the Person making any such Takeover Proposal or inquiry, and (iii) agree to, accept, approve, endorse the material terms (including the price) and conditions of any such Takeover Proposal or recommend inquiry (including any amendments or publicly propose or announce modifications thereto). The Company shall keep Parent reasonably informed on a current basis of the status of any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition such Takeover Proposal, (iv) enter into including any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal material changes to the vote terms and conditions thereof, and promptly (but in any event within two Business Days after the receipt thereof) provide Parent with copies of any shareholders all written or e-mail correspondence or other communications and other written materials, and summaries of Company all oral correspondence or any Subsidiary. Each of other communications, sent or provided to or by the Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations Representatives in connection with any Persons conducted Takeover Proposal. The Special Committee shall promptly consider in good faith (in consultation with its outside legal counsel of nationally or regionally recognized reputation (including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇) and with its financial advisor of nationally or regionally recognized reputation (including Western Reserve)) any proposed alteration of the terms of this Agreement or the Merger proposed by Parent in response to any Takeover Proposal. The Company shall not take any action to exempt any Person from the restrictions on "business combinations" contained in any applicable Laws or to otherwise cause such restrictions not to apply.
(c) Except as permitted by this Section 5.08(c) or Section 5.08(d), neither the Board of Directors nor any committee thereof (including the Special Committee) shall, directly or indirectly, (i) effect a Change in the Company Recommendation or fail to include the Company Board Recommendation in the Proxy Statement, (ii) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary "stop, look and listen" communication by the Board of Directors pursuant to Rule 14d-9(f) of the Exchange Act or (iii) approve any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding relating to, or that may reasonably be expected to lead to, any Takeover Proposal. At any time prior to the Company Shareholder Approval and Minority Approval having been obtained, but not after, the Special Committee may, in response to a Superior Proposal or on to an Intervening Event giving rise to a Superior Alternative, effect a Change in the Agreement Date with respect to any Acquisition Proposal. If any Company RepresentativeRecommendation, whether in his or her capacity as such or in any other capacity, takes any action provided that the Special Committee determines in good faith, by resolution duly adopted after consultation with its outside legal counsel of nationally or regionally recognized reputation (including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇) and with its financial advisor of nationally or regionally recognized reputation (including Western Reserve), that the failure to do so would constitute a breach of the Special Committee's fiduciary duties to the shareholders of the Company is obligated under applicable Law; provided, further, that the Special Committee may not effect a Change in the Company Recommendation pursuant to this Section 6.1 5.08(c) unless (i) the Special Committee shall have first provided prior written notice to Parent of its intention to make such Change in the Company Recommendation, at least five (5) Business Days in advance of taking such action, which notice shall include the reasonable details regarding the cause for, and nature of, the Change in the Company Recommendation, and (ii) Parent does not make, after being provided with reasonable opportunity to have good faith negotiations with the Special Committee (to the extent Parent and Merger Sub desire to have such Company Representative not negotiations), within five (5) Business Days of receipt of such notice, an offer that the Special Committee determines, in good faith after consultation with its legal and financial advisors, results in the applicable Takeover Proposal no longer being a Superior Proposal or the applicable Intervening Event no longer giving rise to takea Superior Alternative. In the event of any material revisions to a Superior Proposal, then the Company shall be required to deliver a new notice to Parent and to comply with the requirements of this Section 5.08(c) with respect to such new written notice.
(d) Nothing contained in this Section 5.08 shall prohibit the Company, the Board of Directors or the Special Committee from (i) complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act in respect of any Takeover Proposal or (ii) making any disclosure to the shareholders of the Company or taking any other action required to comply with applicable Law (including their fiduciary duties thereunder). Any public disclosure by the Company relating to a Takeover Proposal (other than a "stop, look and listen" or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed for all to be a Change in the Company Recommendation unless the Board of Directors expressly publicly reaffirms its approval or recommendation of this Agreement and the Merger in such disclosure, or in the case of a "stop, look and listen" or similar communication, in a subsequent disclosure on or before the earlier of (i) the last day of the ten (10) business day period under Rule 14d-9(f) under the Exchange Act and (ii) two Business Days before the Company Shareholders Meeting.
(e) For purposes of this Agreement to have breached this Section 6.1.Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Mod Pac Corp), Merger Agreement (Mod Pac Corp)
No Solicitation. From During the period from the date hereof and after the Agreement Date continuing until the Closing or earlier of the termination of this Agreement pursuant to Article VIIIits terms, neither the Company nor any of its Subsidiaries nor any date directors designated by Parent or Sub have been elected to and shall constitute a majority of the Company Shareholders willBoard of Directors or the Effective Time, the Company shall not, nor will any of them shall it authorize or permit any of their respective officersits Subsidiaries to, directorsnor shall it authorize or permit any officer, affiliatesdirector or employee of, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the collectively, “Company Representatives”) of, the Company or any of its Subsidiaries to, directly or indirectly, (i) directly or indirectly solicit, initiate, seek, entertain, encourage, facilitate, support knowingly facilitate or induce any inquiry with respect to, or the making, submission or announcement of of, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition ProposalProposal (as defined in Section 5.02(f)), (ii) enter into, participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public nonpublic information with respect to, or take any other action regarding, to facilitate any inquiry, expression inquiries or the making of interest, any proposal that constitutes or offer that constitutes, or would may reasonably be expected to lead to, an any Acquisition Proposal, (iii) agree toengage in discussions with any Person with respect to any Acquisition Proposal, acceptexcept as to the existence of the provisions of this Section 5.02, (iv) approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition ProposalProposal (except to the extent specifically permitted pursuant to Section 5.02(d)), or (ivv) enter into any letter of intent or similar document or any other Contract contemplating or otherwise relating to any Acquisition Proposal, Proposal or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiarytransaction contemplated thereby. Each of the The Company and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons third parties conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
Appears in 2 contracts
Sources: Merger Agreement (Globalive Communications Corp.), Merger Agreement (Yak Communications Inc)
No Solicitation. From (a) The Company shall, and after shall cause its subsidiaries, officers, directors, employees, counsel, investment bankers, financial advisers, accountants, other representatives and agents (collectively, the Agreement Date until the Closing or termination of this Agreement pursuant "Company Representatives") to Article VIII, neither the Company nor any of its Subsidiaries nor any immediately as of the date hereof cease any discussions or negotiations with any parties that may be ongoing with respect to a Takeover Proposal (as defined below). The Company Shareholders willshall not, nor will any of them and shall not authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or any investment banker, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) Representative to, directly or indirectly, (i) solicit, initiateinitiate or encourage (including by way of furnishing information), seek, entertain, encourage, or take any other action to facilitate, support any inquiries or induce the making, submission or announcement making of any inquiry, expression of interest, proposal or offer that which constitutes, or would may reasonably be expected to lead to, an Acquisition any Takeover Proposal, ; (ii) participate in any discussions or negotiations regarding any Takeover Proposal; or (iii) enter intointo any agreement with respect to any Takeover Proposal; provided, participate inhowever, maintain or continue that, if at any communications (except solely to provide written notice as time prior to the existence Effective Time, the Board of these provisionsDirectors of the Company determines in good faith, in consultation with its legal counsel, that it is necessary to do so in order to comply with its fiduciary duties, the Company may, in response to an unsolicited Takeover Proposal, and subject to compliance with Section 7.2(c), (x) or negotiations regarding, or deliver or make available to any Person any non-public furnish information with respect toto the Company to any person pursuant to a confidentiality agreement and (y) participate in negotiations regarding such Takeover Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any Company Representative shall be deemed to be a breach of this Section 7.2(a) by the Company.
(b) Neither the Board of Directors of the Company nor any committee thereof shall: (i) withdraw or modify, or take any other action regardingpropose to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by such Board of Directors or such committee of this Agreement or the Offer or the Merger; (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal; or (iii) cause the Company to enter into any agreement with respect to any Takeover Proposal. Notwithstanding the foregoing, in the event that prior to the Effective Time the Board of Directors of the Company determines in good faith, in consultation with its legal counsel as to legal matters, that it is necessary to do so in order to comply with its fiduciary duties, the Board of Directors of the Company may withdraw or modify its approval or recommendation of this Agreement, the Offer and the Merger, approve or recommend a Superior Proposal (as defined below) or cause the Company to enter into an agreement with respect to a Superior Proposal, but in each case only at a time that is after the fifth Business Day following Parent's receipt of written notice advising Parent that the Board of Directors of the Company has received a Superior Proposal.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 7.2, the Company shall promptly advise Parent orally of any request for information or of any Takeover Proposal (including the terms of such Takeover Proposal). (d) "Takeover Proposal" means any inquiry, expression of interest, proposal or offer that constitutesfrom any person relating to any: (A) merger, consolidation or would reasonably be expected to lead to, an Acquisition Proposalsimilar transaction involving the Company, (iiiB) agree tosale, acceptlease or other disposition directly or indirectly by merger, approveconsolidation, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating share exchange or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to of assets of the vote of any shareholders of Company or any Subsidiary. Each its subsidiaries outside the ordinary course of business representing 10% or more of the consolidated assets of the Company and its Subsidiaries will immediately cease and cause subsidiaries, (C) issue, sale, or other disposition of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to be terminated purchase, or securities convertible into, such securities) representing 20% or more of the voting power of the Company or (D) transaction in which any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of more than 20% of the -26- 31 outstanding Common Stock, in each case, other than the transactions with Parent contemplated by this Agreement. (e) "Superior Proposal" means any other capacitybona fide written offer for a Takeover Proposal to acquire, takes any action directly or indirectly, for consideration consisting of cash and/or securities, more than 20% of the outstanding Common Stock on a fully diluted basis or all or substantially all the assets of the Company and otherwise on terms which the Board of Directors of the Company determines in its good faith judgment in consultation with a financial advisor of nationally recognized reputation that the Company is obligated consideration offered pursuant to this Section 6.1 such Takeover Proposal is more favorable to cause such Company Representative not to take, then the Company shall be deemed for all purposes Shareholders than the Offer and the Merger from a financial point of this Agreement to have breached this Section 6.1.view. ARTICLE VIII
Appears in 2 contracts
Sources: Merger Agreement (Dravo Corp), Merger Agreement (Dravo Corp)
No Solicitation. From and after the Agreement Date until the Closing or termination of this Agreement pursuant to Article VIII, neither (a) Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of the Company Shareholders will, nor will any of them its Subsidiaries authorize or permit any of its or their respective officersRepresentatives to, directorsand the Company shall instruct, affiliatesand cause each applicable Subsidiary and Affiliate, shareholders or employees or any investment bankerif any, attorney or other advisor or representative retained by any of them (all of the foregoing collectively being the “Company Representatives”) to instruct, each such Representative not to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 6.4(b), (i) solicit, initiate, seek, entertain, encourage, facilitate, support or knowingly induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain conduct or continue engage in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingwith, or deliver or make available to any Person disclose any non-public information with respect relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or take otherwise knowingly assist, participate in, facilitate or encourage any other action regardingeffort by, any inquiry, expression of interest, proposal or offer Third Party that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to(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, accept(B) approve any transaction under, approveor any Third Party becoming an “interested stockholder” under, endorse Section 203 of Delaware Law, or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any agreement in principle, letter of intent intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or any other Contract contemplating or otherwise relating to any Acquisition Proposal. Subject to Section 6.4(b) and Section 6.4(c), neither the Company Board nor any committee thereof shall withhold, withdraw, amend or modify in a manner adverse to Parent or Merger Sub the Board Recommendation, or (v) submit any recommend an Acquisition Proposal Proposal, or fail to the vote recommend against acceptance of any shareholders tender offer or exchange offer for the Company Shares within ten (10) Business Days after the commencement of Company or such offer (any Subsidiary. Each of the foregoing, an “Adverse Recommendation Change”). The Company shall, and shall cause its Subsidiaries and its Subsidiaries will and their respective Representatives to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations negotiations, if any, with any Persons Third Party conducted prior to or on the Agreement Date date hereof with respect to any Acquisition Proposal. If .
(b) Notwithstanding the foregoing, prior to but not after the time the vote is taken with respect to the adoption of this Agreement at the Stockholder Meeting, the Company Board, directly or indirectly through any Company Representative, whether may (i) engage in his negotiations or her capacity discussions with any Third Party that has made (and not withdrawn) a Acquisition Proposal in writing that the Company Board reasonably believes, after considering the advice of its outside legal counsel and of a financial advisor of nationally recognized reputation, constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal, (ii) thereafter furnish to such Third Party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement with terms not materially less favorable to the Company than those contained in the Confidential Disclosure Agreement effective as of September 10, 2007 between the Company and Parent (the “Confidentiality Agreement”), which Confidentiality Agreement shall not include any provision for any exclusive right to negotiate with such Third Party or in any other capacityhaving the actual effect of restricting the Company from fulfilling its obligations under this Agreement, takes (iii) following receipt of such Acquisition Proposal, make an Adverse Recommendation Change; provided, that, immediately prior to the adoption of a resolution to make an Adverse Recommendation Change, the Company Board has determined after considering the advice of its outside legal counsel and of a financial advisor of a nationally recognized reputation, that such Acquisition Proposal constitutes a Superior Proposal and / or (iv) take any action that any court of competent jurisdiction orders the Company is obligated pursuant to take, but in each case referred to in the foregoing clauses (i) through (iii), only if (A) such Superior Proposal shall not have arisen from a material breach of the provisions of this Section 6.1 6.4 or was not otherwise submitted as a result of a violation of this Section 6.4, (B) the Company shall have complied with its obligations under this Section 6.4 and (C) the Company Board determines by a majority vote, after considering the advice of outside legal counsel to cause the Company, that it is necessary or appropriate to take such action to comply with its fiduciary duties under Applicable Law. Nothing contained herein shall prevent the Company Representative Board from complying with Rule 14d-9 and Rule 14e-2(a) or Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal. The Company Board shall not take any of the actions referred to takein clauses (i) through (iv) of the Section 6.4(b) unless the Company shall have first complied with the provisions of Section 6.4(c) hereof and delivered to Parent a prior written notice advising that it intends to take such action.
(c) The Company shall notify Parent promptly, but in no event later than the earlier of (x) the second Business Day, or (y) forty-eight (48) hours, after receipt by the Company or any of its Subsidiaries (or any of their respective Representatives), of any Acquisition Proposal or any inquiry (including any request for non-public information) that constitutes or could reasonably be expected to lead to an Acquisition Proposal as well as the identity of the Third Party making any such Acquisition Proposal and the price and material terms and conditions communicated with respect to such Acquisition Proposal. The Company shall provide such notice in writing. The Company shall keep Parent informed, as promptly as practicable, of the status and details of any such Acquisition Proposal and provide Parent as promptly as practicable, but in no event later than the earlier of (x) the second Business Day or (y) forty-eight (48) hours after receipt by the Company, a copy of all written proposals and drafts of definitive agreements provided to the Company in connection with any such Acquisition Proposal or inquiry. After initial notice to Parent in accordance with this Section 6.4(c) of a Third Party making an Acquisition Proposal, if requested by Parent, the Company shall engage in good faith negotiations with Parent for ninety-six (96) hours after that notice is given to amend this Agreement in such a manner that such Acquisition Proposal would not be a Superior Proposal. If, subsequent to such initial notice, there is a change in price or form of consideration to such Acquisition Proposal, then the Company shall be deemed notify Parent of such change and shall engage in good faith negotiations with Parent for all purposes ninety-six (96) hours after notice of that change is given to Parent to amend this Agreement in such a manner that such Acquisition Proposal would not be a Superior Proposal. The Company shall provide Parent with at least two (2) Business Days prior notice (or such lesser prior notice as provided to have breached this Section 6.1the members of Company Board) of any meeting of the Company Board at which the Company Board is reasonably expected to discuss any Acquisition Proposal, including to determine whether such Acquisition Proposal is a Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Axway Inc.), Merger Agreement (Tumbleweed Communications Corp)
No Solicitation. From Other than with respect to the Transaction, each of Company and after Buyer agrees that neither it nor (in the Agreement Date until the Closing or termination case of this Agreement pursuant to Article VIII, neither the Company nor Company) any of its Subsidiaries nor any of the Company Shareholders willits or its Subsidiaries' officers and directors shall, nor will any of them authorize or permit any of their respective officers, directors, affiliates, shareholders or employees or and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries' agents and other representatives (including any investment banker, attorney or other advisor or representative accountant retained by it or any of them (all of the foregoing collectively being the “Company Representatives”its Subsidiaries) not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to (i) solicita merger, initiatereorganization, seekshare exchange, entertainconsolidation or similar transaction involving it or its Subsidiaries, encourage(ii) any sale, facilitatelease, support exchange, mortgage, pledge, transfer or induce purchase of all or substantially all of the makingassets or equity securities of, submission it and its Subsidiaries, taken as a whole, in a single transaction or announcement series of related transactions or (iii) any inquiry, expression tender offer or exchange offer for 20% or more of interest, the outstanding shares of the Buyer Common Stock or Company Common Stock (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each of Company and Buyer further agrees that constitutesneither it nor any of its Subsidiaries nor (in the case of Company) any of its or its Subsidiaries' officers and directors shall, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries' agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or would reasonably be expected to lead provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, (ii) enter into, participate in, maintain or continue otherwise facilitate any communications (except solely effort or attempt to provide written notice as to the existence of these provisions) make or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, implement an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, or (v) submit any Acquisition Proposal to the vote of any shareholders of Company or any Subsidiary. Each of the Company and its Subsidiaries Buyer agrees that it will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons parties conducted prior to or on the Agreement Date heretofore with respect to any Acquisition Proposal. If any Company Representative, whether in his or her capacity as such or in any other capacity, takes any action that Each of the Company is obligated pursuant and Buyer agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.1 to cause such Company Representative not to take, then the Company shall be deemed for all purposes of 6.9. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Buyer, or their respective representatives from, prior to the time Buyer's stockholders have breached approved this Section 6.1.Transaction (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Buyer's board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, the Buyer's board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Buyer from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal
Appears in 2 contracts
Sources: Share Exchange Agreement (Sunningdale, Inc.), Share Exchange Agreement (Sunningdale, Inc.)