Acquisition Proposals; No Solicitation. (a) During the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, each Equity Holder agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of its Subsidiaries shall, and that it shall not authorize or permit its or its Subsidiaries’ Employees, stockholders, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) to, directly or indirectly: (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries with respect to, or the making, submission or announcement of, any offer or proposal for an Acquisition Proposal; (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, any Acquisition Proposal; (iii) engage in discussions with any Person with respect to any Acquisition Proposal, except as to the existence of these provisions; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating any Acquisition Proposal or transaction contemplated thereby. Each Equity Holder and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal. For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any Person relating to any direct or indirect acquisition or purchase of a business of Equity Holder, the Company or any of their Subsidiaries, or ten percent (10%) or more of the outstanding voting equity interests of Equity Holder, the Company or any of their Subsidiaries, any tender offer or exchange offer of equity interests of Equity Holder, the Company or any of their Subsidiaries, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the acquisition of ten percent (10%) or more of the outstanding voting equity interests or assets of Equity Holder, the Company or any of their Subsidiaries, other than the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (EVO Transportation & Energy Services, Inc.)
Acquisition Proposals; No Solicitation. (a) During the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, each Equity Holder agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall not authorize or permit its or its Subsidiaries’ Employees, stockholders, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) to, directly or indirectly: (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries with respect to, or the making, submission or announcement of, any offer or proposal for an Acquisition Proposal; (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, any Acquisition Proposal; (iii) engage in discussions with any Person with respect to any Acquisition Proposal, except as to the existence of these provisions; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating any Acquisition Proposal or transaction contemplated thereby. Each Equity Holder and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal. For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any Person relating to any direct or indirect acquisition or purchase of a business of Equity Holder, the Company or any of their Subsidiaries, or ten percent (10%) or more of the outstanding voting equity interests of Equity Holder, the Company or any of their Subsidiaries, any tender offer or exchange offer of equity interests of Equity Holder, the Company or any of their Subsidiaries, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the acquisition of ten percent (10%) or more of the outstanding voting equity interests or assets of Equity Holder, the Company or any of their Subsidiaries, other than the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Acquisition Option Agreement (EVO Transportation & Energy Services, Inc.)
Acquisition Proposals; No Solicitation. (a) During the period from From the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, each Equity Holder agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of its Subsidiaries shallEKCO shall not, and that it shall will direct each affiliate, officer, director, representative and agent of EKCO and its affiliates not authorize or permit its or its Subsidiaries’ Employees, stockholders, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) to, directly or indirectly: (i) , encourage, solicit, initiate, knowingly encourage or knowingly facilitate any inquiries with respect to, or the making, submission or announcement of, any offer or proposal for an Acquisition Proposal; (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, any Acquisition Proposal; (iii) engage in discussions with any Person with respect to any Acquisition Proposal, except as to the existence of these provisions; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating any Acquisition Proposal or transaction contemplated thereby. Each Equity Holder and its Subsidiaries will immediately cease any and all existing activities, initiate discussions or negotiations with any third parties conducted heretofore with respect corporation, partnership, person or other entity or group (other than ACQUIROR or an affiliate or an associate of ACQUIROR) or take any other action to facilitate, any Acquisition Proposal. For purposes inquiry or the making of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any Person relating to any direct or indirect acquisition or purchase of a business of Equity Holder, the Company or any of their Subsidiarieswhich constitutes, or ten percent (10%) or more of the outstanding voting equity interests of Equity Holdermay reasonably be expected to lead to, the Company or any of their Subsidiaries, any tender an offer or exchange offer of equity interests of Equity Holder, the Company or any of their Subsidiaries, or proposal for any merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the acquisition of ten percent (10%) or more of the outstanding voting equity interests or assets of Equity Holder, the Company EKCO or any of their the EKCO Subsidiaries, or any purchase or sale of more than 15% of the assets (including stock of the EKCO Subsidiaries) of EKCO and the EKCO Subsidiaries taken as a whole, or any purchase or sale of, or tender or exchange offer for, more than 15% of the equity securities of EKCO or any of the EKCO Subsidiaries (an "Acquisition Proposal") or furnish to any other than person any information with respect to its business, properties or assets in connection with any of the transactions contemplated foregoing, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person to do or seek any of the foregoing. In addition, EKCO shall, and shall cause each affiliate, officer, director, representative and agent of EKCO to, immediately cease any existing discussions or negotiations, or other activities referred to in the immediately preceding sentence, with any person conducted heretofore with respect to any of the foregoing matters referred to in the immediately preceding sentence. Notwithstanding the foregoing, EKCO may, (i) refer any party to this AgreementSection 5.2, (ii) directly or indirectly, furnish information and access, in response to unsolicited requests therefor to any corporation, partnership, person or other entity or group that has made a Superior Proposal (as defined below) and to any investment banker, financial advisor, attorney, accountant or other representative retained by such party, pursuant to an appropriate confidentiality agreement and may participate in discussions and negotiations concerning any such Superior Proposal if the Board of Directors determines in its good faith judgment, after receiving and based upon advice from outside legal counsel, that such action is required to prevent the Board of Directors of EKCO from breaching its fiduciary duties to the stockholders of EKCO under Delaware law and (iii) to the extent applicable, comply with Rule 14e-2 or 14d-9 promulgated under the Exchange Act with regard to an Acquisition Proposal, subject in the case of clauses (ii) and (iii) to any rights of ACQUIROR to terminate this Agreement and receive payment of any fee due under Article VII as a result thereof. EKCO shall promptly notify ACQUIROR orally and in writing if any unsolicited request for information and access in connection with a possible Acquisition Proposal involving such a party is made and shall, in any such notice to ACQUIROR, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal or offer, or any such inquiry or contact. "Superior Proposal" means any bona fide written Acquisition Proposal made by a third party after the date hereof which, if consummated, will result in a transaction that, taking into Agreement and Plan of Merger 27 Execution Copy 32 account all legal, financial and regulatory aspects and consequences of the proposal and the person making such proposal, including the relative expected consummation date and the risk of non-consummation, is financially superior, is not subject to a financing contingency and is otherwise as favorable in all material respects to EKCO's stockholders as the Offer and the Merger. EKCO also agrees not to release any third party from, waive any provisions of, or to fail to enforce any confidentiality or standstill agreement to which EKCO is a party.
Appears in 1 contract
Acquisition Proposals; No Solicitation. (a) During the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, each Equity Holder agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of its Subsidiaries shall, and that it shall not authorize or permit its or its Subsidiaries’ Employeesemployees, stockholders, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) to, directly or indirectly: (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries with respect to, or the making, submission or announcement of, any offer or proposal for an Acquisition Proposal; (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, any Acquisition Proposal; (iii) engage in discussions with any Person with respect to any Acquisition Proposal, except as to the existence of these provisions; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating any Acquisition Proposal or transaction contemplated thereby. Each Equity Holder and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal. For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any Person relating to any direct or indirect acquisition or purchase of a business of Equity Holder, the Company or any of their Subsidiaries, or ten percent (10%) or more of the outstanding voting equity interests of Equity Holder, the Company or any of their Subsidiaries, any tender offer or exchange offer of equity interests of Equity Holder, the Company or any of their Subsidiaries, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the acquisition of ten percent (10%) or more of the outstanding voting equity interests or assets of Equity Holder, the Company or any of their Subsidiaries, other than the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (EVO Transportation & Energy Services, Inc.)
Acquisition Proposals; No Solicitation. (a) During the period from From the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, each Equity Holder agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of its Subsidiaries shallEKCO shall not, and that it shall will direct each affiliate, officer, director, representative and agent of EKCO and its affiliates not authorize or permit its or its Subsidiaries’ Employees, stockholders, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) to, directly or indirectly: (i) , encourage, solicit, initiate, knowingly encourage or knowingly facilitate any inquiries with respect to, or the making, submission or announcement of, any offer or proposal for an Acquisition Proposal; (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, any Acquisition Proposal; (iii) engage in discussions with any Person with respect to any Acquisition Proposal, except as to the existence of these provisions; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating any Acquisition Proposal or transaction contemplated thereby. Each Equity Holder and its Subsidiaries will immediately cease any and all existing activities, initiate discussions or negotiations with any third parties conducted heretofore with respect corporation, partnership, person or other entity or group (other than ACQUIROR or an affiliate or an associate of ACQUIROR) or take any other action to facilitate, any Acquisition Proposal. For purposes inquiry or the making of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any Person relating to any direct or indirect acquisition or purchase of a business of Equity Holder, the Company or any of their Subsidiarieswhich constitutes, or ten percent (10%) or more of the outstanding voting equity interests of Equity Holdermay reasonably be expected to lead to, the Company or any of their Subsidiaries, any tender an offer or exchange offer of equity interests of Equity Holder, the Company or any of their Subsidiaries, or proposal for any merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the acquisition of ten percent (10%) or more of the outstanding voting equity interests or assets of Equity Holder, the Company EKCO or any of their the EKCO Subsidiaries, or any purchase or sale of more than 15% of the assets (including stock of the EKCO Subsidiaries) of EKCO and the EKCO Subsidiaries taken as a whole, or any purchase or sale of, or tender or exchange offer for, more than 15% of the equity securities of EKCO or any of the EKCO Subsidiaries (an "Acquisition Proposal") or furnish to any other than person any information with respect to its business, properties or assets in connection with any of the transactions contemplated foregoing, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person to do or seek any of the foregoing. In addition, EKCO shall, and shall cause each affiliate, officer, director, representative and agent of EKCO to, immediately cease any existing discussions or negotiations, or other activities referred to in the immediately preceding sentence, with any person conducted heretofore with respect to any of the foregoing matters referred to in the immediately preceding sentence. Notwithstanding the foregoing, EKCO may, (i) refer any party to this AgreementSection 5.2, (ii) directly or indirectly, furnish information and access, in response to unsolicited requests therefor to any corporation, partnership, person or other entity or group that has made a Superior Proposal (as defined below) and to any investment banker, financial advisor, attorney, accountant or other representative retained by such party, pursuant to an appropriate confidentiality agreement and may participate in discussions and negotiations concerning any such Superior Proposal if the Board of Directors determines in its good faith judgment, after receiving and based upon advice from outside legal counsel, that such action is required to prevent the Board of Directors of EKCO from breaching its fiduciary duties to the stockholders of EKCO under Delaware law and (iii) to the extent applicable, comply with Rule 14e-2 or 14d-9 promulgated under the Exchange Act with regard to an Acquisition Proposal, subject in the case of clauses (ii) and (iii) to any rights of ACQUIROR to terminate this Agreement and receive payment of any fee due under Article VII as a result thereof. EKCO shall promptly notify ACQUIROR orally and in writing if any unsolicited request for information and access in connection with a possible Acquisition Proposal involving such a party is made and shall, in any such notice to ACQUIROR, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal or offer, or any such inquiry or contact. "Superior Proposal" means any bona fide written Acquisition Proposal made by a third party after the date hereof which, if consummated, will result in a transaction that, taking into account all legal, financial and regulatory aspects and consequences of the proposal and the person making such proposal, including the relative expected consummation date and the risk of non-consummation, is financially superior, is not subject to a financing contingency and is otherwise as favorable in all material respects to EKCO's stockholders as the Offer and the Merger. EKCO also agrees not to release any third party from, waive any provisions of, or to fail to enforce any confidentiality or standstill agreement to which EKCO is a party.
Appears in 1 contract
Acquisition Proposals; No Solicitation. (a) During the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, each Equity Holder agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of its Subsidiaries shallThe Stockholder shall not, and that it shall not authorize the Stockholder’s Representatives, at the Stockholder’s direction or permit its or its Subsidiaries’ Employeeson the Stockholder’s behalf, stockholders, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) towill not, directly or indirectly: , (i) initiate, solicit, initiate, propose or knowingly encourage or knowingly facilitate the making of any inquiries with respect to, or the making, submission or announcement of, any offer or proposal for an Acquisition Proposal; , (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish provide to any Person any nonpublic information with respect or data concerning the Company or any of its Subsidiaries relating to, any Acquisition Proposal; , (iii) engage enter into any letter of intent, agreement in principle, merger agreement or other similar agreement with any person relating to an Acquisition Proposal or (iv) form or become a member of a “group” (as such term is defined under the Exchange Act) with respect to any equity interests of the Company for the purpose of engaging in any of the foregoing activities or opposing or competing with or taking any actions inconsistent with this Agreement or the Merger Agreement or the transactions contemplated hereby or thereby, in each case except to the extent that at such time the Company is permitted to take any such action pursuant to the Merger Agreement (but subject to the same restrictions applicable to the Company with respect to the taking of such action under the Merger Agreement). The Stockholder shall, and the Stockholder’s Representatives, at the Stockholder’s direction or on the Stockholder’s behalf, shall immediately cease all discussions and negotiations with any Person that may be ongoing with respect to any Acquisition Proposal.
(b) The Stockholder agrees to promptly (and, except as in any event, within 24 hours) notify Parent if any proposals or offers with respect to the existence of these provisions; (iv) approvean Acquisition Proposal are received by, endorse or recommend any Acquisition Proposal; or (v) enter into any letter of intent or similar document non-public information is requested from, or any contract agreement or commitment contemplating any Acquisition Proposal or transaction contemplated thereby. Each Equity Holder and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect are sought to any Acquisition Proposal. For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal be initiated or offer from any Person relating to any direct or indirect acquisition or purchase of a business of Equity Holdercontinued with, the Company or Stockholder or, to the Stockholder’s knowledge, any of their Subsidiariesits Representatives indicating, or ten percent (10%) or more in connection with such notice, the identity of the outstanding voting equity interests of Equity HolderPerson making such proposal, the Company or any of their Subsidiaries, any tender offer or exchange offer request and the financial and other material terms of equity interests of Equity Holder, the Company any proposals or any of their Subsidiaries, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the acquisition of ten percent (10%) or more of the outstanding voting equity interests or assets of Equity Holder, the Company or any of their Subsidiaries, other than the transactions contemplated by this Agreementoffers.
Appears in 1 contract
