Alternative Proposals. (a) Upon execution and delivery of this Agreement, the Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, conducted with any parties heretofore with respect to any acquisition of all or any material portion of the assets of, or any equity interest in, the Company or any business combination with the Company. Notwithstanding the foregoing, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase Plan, subject to the limitations set forth in Section 3.2(d)(iv). (b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) such entity or group has submitted a written proposal to the Board of Directors of the Company relating to any such Transaction (an "Alternative Proposal"), (ii) the entity or group enters into confidentiality agreements with the Company with respect to such non-public information, and (iii) the Company Board, by a majority vote, determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal. (c) Neither the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transaction, or (ii) authorize, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offers; provided, further, that the Company Board shall not recommend that the stockholders of the Company tender their shares in connection with any such tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. (d) Nothing in this Section 6.1 shall (i) permit the Company to terminate this Agreement (except as specifically provided in Article 8 hereof), (ii) permit the Company to enter into any agreement with respect to a Transaction during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, a Transaction, other than a confidentiality agreement in customary form), or (iii) except as specifically provided in Article 8, affect any other obligation of the Company under this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Advanced Energy Industries Inc), Agreement and Plan of Reorganization (Engineering Measurements Co), Agreement and Plan of Reorganization (Advanced Energy Industries Inc)
Alternative Proposals. (a) Upon execution and delivery of this Agreement, the Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, conducted with any parties heretofore with respect to any acquisition of all or any material portion of the assets of, or any equity interest in, the Company or any business combination with the Company. Notwithstanding the foregoing, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on 5.8.1 INFO hereby agrees that after the date hereof and pursuant prior to the Stock Purchase PlanClosing Date or earlier termination of this Master Transaction Agreement, subject INFO shall not, and shall not permit any of its Affiliates to, and such party shall, and shall cause each of its Affiliates to, cause each officer, director and employee of such party and its Affiliates, and each attorney, accountant, investment banker, financial advisor and other agent retained by them, not to, directly or indirectly:
(a) initiate or solicit any discussion in relation to or any inquiries or the submission of any proposal or offer relating to a Change of Control of INFO, whether by merger, share exchange, purchase of stock, purchase of assets, tender offer, joint venture or otherwise, and whether for cash, securities or any other consideration or combination thereof that is inconsistent with or provides a competitive impediment to the limitations set forth in Section 3.2(d)(ivtransactions contemplated hereby and the ongoing operations and prospects of EDCO as determined by BHW (any such inconsistent or competitive transaction being referred to herein as an "Alternative Transaction")., or
(b) Prior participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, the making of any proposal that constitutes, or may reasonably be expected to or lead to, any Alternative Transaction; provided, HOWEVER, that prior to the Closing Datevote of shareholders of INFO for approval and adoption of the transactions contemplated by this Master Transaction Agreement, INFO may take any actions described in the Company may, solely in response foregoing clause (b) to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided extent that (i) such entity or group has submitted a written proposal to the Board of Directors of INFO determines, in good faith after consultation with INFO's investment bankers and outside counsel, that the Company relating Alternative Transaction, taken as a whole, is superior to the transactions contemplated by this Master Transaction Agreement.
5.8.2 INFO will immediately cease and cause to be terminated any such Transaction (an "Alternative Proposal")existing initiation, (ii) the entity solicitation, encouragement, discussions or group enters into confidentiality agreements negotiations with the Company parties other than BHW with respect to such non-public informationAlternative Transactions.
5.8.3 If the Board of Directors of INFO receives an Alternative Transaction that, and (iii) taken as a whole, it determines to be superior to the Company Boardtransactions contemplated by this Master Transaction Agreement, by a majority vote, determines as determined in its good faith judgment, based as to legal matters on the written advice of legal after consultation with INFO's investment bankers and outside counsel, the Board of Directors may withdraw or modify its approval or recommendation of this Master Transaction Agreement and may (subject to the following sentence) terminate this Master Transaction Agreement, in each case at any time after the fifth business day following BHW's receipt of written notice advising BHW that failing to take such action would constitute a breach the Board of the Company Board's fiduciary duty. The Company Board shall provide a copy Directors of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal.
(c) Neither the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transaction, or (ii) authorize, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company INFO has received an Alternative Proposal in writing and the Company Board, by majority vote, Transaction that it has determined in its good faith judgmentto be a superior proposal, based as to legal matters on specifying the written advice principal terms and conditions of legal counsel, that failing to take such action would constitute a breach of superior proposal and identifying the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing person making such superior proposal. INFO may terminate this Master Transaction Agreement pursuant to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under preceding sentence only if the Exchange Act with regard to any tender offers; provided, further, that the Company Board shareholders of INFO shall not recommend that yet have voted upon the stockholders Master Transaction Agreement and INFO shall have paid to BHW a termination fee pursuant to Section 8.2.1. In addition to the obligations of the Company tender their shares in connection with any such tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty.
(d) Nothing INFO set forth in this Section 6.1 5.8.3, INFO shall (i) permit promptly advise BHW orally and in writing of any negotiations or discussions entered into in reliance on the Company proviso to terminate this Agreement (except as specifically provided in Article 8 hereof), (ii) permit the Company to enter into any agreement with respect to a Transaction during the term first sentence of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, a Transaction, other than a confidentiality agreement in customary form), or (iii) except as specifically provided in Article 8, affect any other obligation of the Company under this AgreementSection 5.8.1.
Appears in 2 contracts
Samples: Master Transaction Agreement (Infonautics Inc), Master Transaction Agreement (Infonautics Inc)
Alternative Proposals. Each of Xxxxxx and Genlyte hereby agree that:
(a) Upon execution After the date hereof and delivery prior to the Closing Date or earlier termination of this Agreement, such party shall not, and shall not permit any of its Affiliates to, and such party shall, and shall cause each of its Affiliates to, cause each officer, director and employee of such party and its Affiliates, and each attorney, accountant, investment banker, financial advisor and other agent retained by them, not to, directly or indirectly, initiate, solicit or encourage or take any other action to knowingly facilitate or intentionally engage in any discussion in relation to, any inquiries or the Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease submission of any existing discussions proposal or negotiations, if any, conducted with any parties heretofore with respect offer to any acquisition of acquire or operate all or any material portion part of its Contributed Business or to acquire any Person (including such party) that directly or indirectly owns all or any part of its Contributed Business, whether by merger, share exchange, purchase of stock, purchase of assets, tender offer, joint venture or otherwise, and whether for cash, securities or any other consideration or combination thereof, if such transaction would be materially inconsistent with or preclusive of the assets oftransactions contemplated hereby (any such inconsistent or preclusive transaction being referred to herein as an "ALTERNATIVE TRANSACTION"). Such party will immediately cease and cause to be terminated any existing initiation, solicitation, encouragement, discussions or any equity interest in, negotiations with parties other than the Company or any business combination other party hereto with the Company. Notwithstanding the foregoing, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant respect to the Stock Purchase Plan, subject to the limitations set forth in Section 3.2(d)(iv)Alternative Transactions.
(b) Prior to Notwithstanding the Closing Dateprovisions of Section 5.8(a), the Company may, solely in response to a proposal for an Alternative Transaction (an "ALTERNATIVE PROPOSAL") that is unsolicited requests thereforand made after the date hereof and prior to the stockholder vote, (i) such party may engage in discussions or negotiations regarding such Alternative Proposal with the Person who makes such Alternative Proposal (a "POTENTIAL ACQUIROR"); and (ii) such party may furnish to any Potential Acquiror (subject to the execution of a confidentiality agreement containing confidentiality provisions substantially similar to the confidentiality provision of this Agreement or any other confidentiality agreements between the parties) confidential or non-public information regarding itself to any corporationconcerning such party or its Affiliates, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with if such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) such entity or group has submitted a written proposal to the party's Board of Directors of the Company relating to any such Transaction (an "Alternative Proposal")Directors, (ii) the entity or group enters into confidentiality agreements after consulting with the Company with respect to such non-public information, its outside legal counsel and (iii) the Company Board, by a majority vote, determines in its good faith judgment, based as to legal matters on receiving the written advice of legal such counsel, determines in good faith that failing the failure to take provide such action confidential or non- public information to or negotiate with, a Potential Acquiror would be reasonably likely to constitute a breach of the Company Boardits fiduciary duty to such party's fiduciary dutystockholders. The Company Board shall provide a copy of any such written proposal to Parent It is understood and Merger Sub immediately after receipt thereof, unless prohibited agreed by the terms parties that negotiations and other activities conducted in accordance with this Section 5.8(b) shall not constitute a violation of such proposalSections 5.1 or 5.8(a).
(c) Neither Such party shall immediately notify the Company nor any other party of its affiliates, nor receipt of any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub Alternative Proposal or any designees of Parent and Merger Sub) concerning any Transaction, request for confidential or (ii) authorize, propose non- public information relating to such party or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received its Affiliates in connection with an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing or for access to the Company's stockholdersproperties, a position contemplated books or records of such party or any Affiliate by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offers; provided, further, Person that the Company Board shall not recommend that the stockholders of the Company tender their shares in connection with any such tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty.
(d) Nothing in this Section 6.1 shall (i) permit the Company to terminate this Agreement (except as specifically provided in Article 8 hereof), (ii) permit the Company to enter into any agreement with respect to a Transaction during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides foris considering making, or in any way facilitateshas made, a Transaction, other than an Alternative Proposal and prior to providing such access shall obtain a confidentiality agreement in customary form), or (iii) except as specifically provided in Article 8, affect any other obligation of the Company under this Agreementwith such Person.
Appears in 2 contracts
Samples: Master Transaction Agreement (Genlyte Group Inc), Master Transaction Agreement (Thomas Industries Inc)
Alternative Proposals. (a) Upon execution and delivery of this Agreement, the Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, conducted with any parties heretofore with respect to any acquisition of all or any material portion of the assets of, or any equity interest in, the Company or any business combination with the Company. Notwithstanding the foregoing, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase Plan, subject to the limitations set forth in Section 3.2(d)(iv).
(b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) such entity or group has submitted a written proposal to the Board of Directors of the Company relating to any such Transaction (an "Alternative Proposal"), (ii) the entity or group enters into confidentiality agreements with the Company with respect to such non-public information, and (iii) the Company Board, by a majority vote, determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal.
(c) Neither the Company nor any of its affiliatesSubsidiaries shall, nor any of such Persons' respective and they shall cause their officers, directorsdirectors and employees and direct their agents and representatives (including, employeeswithout limitation, representatives any investment banker, attorney or agentsaccountant retained by the Company or its Subsidiaries) not to initiate, shallsolicit, or knowingly encourage, directly or indirectly indirectly, any inquiries or the making or implementation of any Alternative Proposal (ias defined below) encourage, solicit, or participate in or initiate discussions or any negotiations withconcerning, or provide any confidential information or data to, any corporationafford access to the properties, partnership, person books or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transaction, or (ii) authorize, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach records of the Company Board's fiduciary dutyor its Subsidiaries to, or have any discussions with, any Person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; provided, however, that nothing herein contained in this Section 5.1 shall prevent prohibit the Company or its Board from takingof Directors from: (i) at any time prior to obtaining the Company Stockholder Approval (the "COMPANY APPLICABLE PERIOD"), participating in discussions or negotiations with, providing confidential information or data to, or affording access to the properties, books or records of the Company or its Subsidiaries to, any Person who has made, in the good faith judgment of the Board of Directors of the Company after consultation with their financial advisors, a bona fide written Alternative Proposal that would reasonably be expected to result in a Superior Proposal (as defined below); PROVIDED THAT: (w) such Alternative Proposal was not initiated, solicited or knowingly encouraged by the Company, its Subsidiaries or their agents in violation of this Section 5.1, (x) the Company has complied with its obligations under this Section 5.1, (y) the Board of Directors of the Company, after consultation with outside legal counsel, determines in good faith that the failure to so participate in discussions or negotiations, provide confidential information or data or afford access would result in a breach of the fiduciary duty of the Board of Directors of the Company to stockholders of the Company under applicable Law and disclosing (z) a copy of all the information provided to such Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent or (ii) making such disclosure to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under if the Exchange Act Board of Directors of the Company determines in good faith, after consultation with regard to any tender offers; provided, furtheroutside legal counsel, that the failure to disclose such information would result in a breach of the fiduciary duty of the Board of Directors of the Company Board shall not recommend that to the stockholders of the Company tender their shares under applicable Law. Any actions permitted under clauses (i) and (ii) above, and taken in connection compliance with any such tender offer unless the Company Board by a majority vote determines in its good faith judgmentforegoing, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute shall not be deemed a breach of the Company Board's fiduciary duty.
(d) Nothing in this Section 6.1 shall (i) permit the Company to terminate this Agreement (except as specifically provided in Article 8 hereof), (ii) permit the Company to enter into any agreement with respect to a Transaction during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, a Transaction, other than a confidentiality agreement in customary form), or (iii) except as specifically provided in Article 8, affect any other obligation covenant or agreement of the Company under such party contained in this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Integrated Defense Technologies Inc), Merger Agreement (Integrated Defense Technologies Inc)
Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company agrees (a) Upon execution that neither it nor any of its Subsidiaries shall, and delivery of this Agreement, the Company, it shall direct and use its affiliates and their respective best efforts to cause its officers, directors, employees, agents and representatives and agents shall immediately cease (including, without limitation, any existing discussions investment banker, attorney or negotiationsaccountant retained by it or any of its Subsidiaries) not to, if anyinitiate or solicit, conducted with directly or indirectly, any parties heretofore inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any acquisition purchase of (i) all or any material significant portion of the assets ofof the Company and its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of the Company, (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Alternative Proposal; and (b) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is received from, or any equity interest insuch negotiations or discussions are sought to be initiated or continued with, the Company or any business combination with the Company. Notwithstanding the foregoingit; provided, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase Planhowever, subject to the limitations set forth that nothing contained in this Section 3.2(d)(iv).
(b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) such entity or group has submitted a written proposal to 6.16 shall prohibit the Board of Directors of the Company relating to any such Transaction (an "Alternative Proposal"), (ii) the entity or group enters into confidentiality agreements with the Company with respect to such non-public information, and (iii) the Company Board, by a majority vote, determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal.
(c) Neither the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly from (i) encouragefurnishing information to, solicit, participate in or initiate entering into discussions or negotiations with, any Person that makes an unsolicited bona fide offer or provide any proposal with respect to an Alternative Proposal, if, and only to the extent that (A) the Board of Directors determines in good faith, after advice of its outside counsel, that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, any corporationor entering into discussions or negotiations with, partnershipsuch Person, person or other entity or group (other than the Company provides written notice to Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transactionto the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person (provided nothing herein shall require the Company to identify such Person); and (ii) authorizeto the extent 35 41 applicable, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent the Company Board from taking, taking and disclosing to the Company's stockholders, stockholders a position with regard to a tender or exchange offer contemplated by Rules 14d-9 and or 14e-2 or promulgated under the Exchange Act with regard and making such disclosure to any tender offers; provided, further, that the Company Board shall not recommend that the Company's stockholders of the Company tender their shares in connection with any such tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty.
(d) may be required under applicable law. Nothing in this Section 6.1 6.16 shall (ix) permit the Company any party to terminate this Agreement (except as specifically provided in Article 8 Section 10.1 hereof), (iiy) permit the Company any party to enter into any agreement with respect to a Transaction for an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company no party shall not enter into any agreement with any person Person that provides for, or in any way facilitates, a Transaction, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (iiiz) except as specifically provided in Article 8, affect any other obligation of the Company any party under this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Iwerks Entertainment Inc), Agreement and Plan of Reorganization (Showscan Entertainment Inc)
Alternative Proposals. Prior to the Effective Time, Enviroq agrees (a) Upon execution and delivery that neither it nor any of this Agreementits Subsidiaries shall, the Company, nor shall it or any of its affiliates and Subsidiaries permit their respective officers, directors, employees, agents and representatives and agents shall immediately cease (including any existing discussions investment banker, attorney or negotiationsaccountant retained by it or any of its Subsidiaries) to, if anyinitiate, conducted with solicit or encourage, directly or indirectly, any parties heretofore inquiries or the making or implementation of any proposal or offer (including any proposal or offer to its stockholders) with respect to any acquisition a merger, acquisition, consolidation or similar transaction involving, or purchase of (i) all or any material significant portion of the assets of, or any equity interest in, the Company or any business combination with the Company. Notwithstanding the foregoing, the Company may issue Company Common Stock issuable upon exercise of the Company Options Enviroq and its Subsidiaries taken as a whole, (ii) 15% or more of the outstanding on the date hereof and pursuant to the Stock Purchase Plan, subject to the limitations set forth in Section 3.2(d)(iv).
(b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of Enviroq Stock or (iii) 15% or more of the outstanding shares of the capital stock or similar transaction involving the Company of any Subsidiary of Enviroq (a "Transaction"), provided that (i) such entity or group has submitted a written proposal to the Board of Directors of the Company relating to any such Transaction (proposal or offer being hereinafter referred to as an "Alternative Proposal"), (ii) the entity or group enters into confidentiality agreements with the Company with respect to such non-public information, and (iii) the Company Board, by a majority vote, determines engage in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal.
(c) Neither the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) encourage, solicit, participate in or initiate discussions or negotiations withconcerning, or provide any confidential information or data to, or have any corporation, partnership, person or other entity or group (other than Parent and Merger Subdiscussions with, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transaction, or (ii) authorize, propose or announce an intention Person relating to authorize or propose any Transaction (other than the Merger), unless and until the Company has received an Alternative Proposal in writing (excluding the Mergers and the Company BoardRedemption contemplated by this Agreement), by majority voteor otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; and (b) that it will notify IAM and CRC immediately if any such inquiries or proposals are received by, has determined in its good faith judgmentany such information is requested from, based as or any such negotiations or discussions are sought to legal matters on the written advice of legal counselbe initiated or continued with, that failing to take such action would constitute a breach of the Company Board's fiduciary dutyit; provided, however, that nothing herein contained in this Section 5.6 shall prevent prohibit the Company Board board of directors of Enviroq from taking(i) furnishing information to or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide Alternative Proposal if, and disclosing only to the Company's stockholdersextent that, (A) the board of directors of Enviroq, based upon the advice of outside counsel, determines in good faith that the failure to terminate this Agreement and the transactions contemplated hereby would be reasonably likely to result in a position contemplated by Rules 14d-9 breach of the directors' fiduciary duty to the stockholders of Enviroq, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, Enviroq provides written notice to IAM and CRC to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person, and (C) Enviroq keeps IAM and CRC reasonably informed of the status of any such discussions; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to any tender offers; provided, further, that the Company Board shall not recommend that the stockholders of the Company tender their shares in connection with any such tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty.
(d) an Alternative Proposal. Nothing in this Section 6.1 5.6 shall (ix) permit the Company Enviroq to terminate this Agreement (except as specifically provided in Article 8 11 hereof), (iiy) permit the Company Enviroq to enter into any agreement with respect to a Transaction during the term of an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that during the term of for as long as this AgreementAgreement remains in effect, the Company Enviroq shall not enter into any agreement with any person Person that provides for, or in any way facilitates, a Transaction, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (iiiz) except as specifically provided in Article 8, affect any other obligation of the Company Enviroq under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Enviroq Corp /De/)
Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company agrees (a) Upon execution that neither it nor any of its Subsidiaries shall, and delivery of this Agreement, the Company, it shall direct and use its affiliates and their respective best efforts to cause its officers, directors, employees, agents and representatives and agents shall immediately cease (including, without limitation, any existing discussions investment banker, attorney or negotiationsaccountant retained by it or any of its Subsidiaries) not to, if anyinitiate or solicit, conducted with directly or indirectly, any parties heretofore inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any acquisition purchase of (i) all or any material significant portion of the assets ofof the Company and its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of the Company, (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Alternative Proposal; and (b) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is received from, or any equity interest insuch negotiations or discussions are sought to be initiated or continued with, the Company or any business combination with the Company. Notwithstanding the foregoingit; PROVIDED, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase PlanHOWEVER, subject to the limitations set forth that nothing contained in this Section 3.2(d)(iv).
(b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) such entity or group has submitted a written proposal to 6.16 shall prohibit the Board of Directors of the Company relating to any such Transaction (an "Alternative Proposal"), (ii) the entity or group enters into confidentiality agreements with the Company with respect to such non-public information, and (iii) the Company Board, by a majority vote, determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal.
(c) Neither the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly from (i) encouragefurnishing information to, solicit, participate in or initiate entering into discussions or negotiations with, any Person that makes an unsolicited bona fide offer or provide any proposal with respect to an Alternative Proposal, if, and only to the extent that (A) the Board of Directors determines in good faith, after advice of its outside counsel, that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, any corporationor entering into discussions or negotiations with, partnershipsuch Person, person or other entity or group (other than the Company provides written notice to Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transactionto the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person (provided nothing herein shall require the Company to identify such Person); and (ii) authorizeto the extent applicable, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent the Company Board from taking, taking and disclosing to the Company's stockholders, stockholders a position with regard to a tender or exchange offer contemplated by Rules 14d-9 and or 14e-2 or promulgated under the Exchange Act with regard and making such disclosure to any tender offers; provided, further, that the Company Board shall not recommend that the Company's stockholders of the Company tender their shares in connection with any such tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty.
(d) may be required under applicable law. Nothing in this Section 6.1 6.16 shall (ix) permit the Company any party to terminate this Agreement (except as specifically provided in Article 8 Section 10.1 hereof), (iiy) permit the Company any party to enter into any agreement with respect to a Transaction for an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company no party shall not enter into any agreement with any person Person that provides for, or in any way facilitates, a Transaction, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (iiiz) except as specifically provided in Article 8, affect any other obligation of the Company any party under this Agreement.
Appears in 1 contract
Alternative Proposals. (a) Except as set forth below, from and after the date hereof and prior to the Effective Time, the Company agrees that neither it nor any Subsidiary or affiliate of it, nor any officer, director, employee, investment banker, agent or other representative of it or its Subsidiaries shall, directly or indirectly, (i) encourage, invite, initiate or solicit any inquiries relating to or the submission or making of a proposal by any person with respect to a Third-Party Acquisition (as defined below) or (ii) participate in or encourage, invite, initiate or solicit negotiations or discussions with, or furnish or cause to be furnished any information to, any person relating to a Third-Party Acquisition. Upon the execution and delivery of this Agreement, the Company shall immediately (A) cease, or cause to be ceased, any discussions or negotiations with any person, entity or group in connection with any proposed or potential Third-Party Acquisition and shall request the prompt return to the Company, its affiliates and their respective officersor destruction of, directors, employees, representatives and agents shall immediately cease any existing confidential information provided in connection with any such discussions or negotiationsnegotiations and (B) take all actions necessary to terminate, if anyeffective as of the business day immediately following the date hereof, conducted with the Company's stock repurchase program authorized by the Company's Board of Directors on April 21, 0000 (xxx "Xxxxx Xxxxxxxxxx Program"). Except as otherwise provided in Sections 5.1(d) and 5.3, the Company's Board of Directors shall not (1) make a Change in the Company Recommendation (as defined in Section 5.3(b)), or (2) cause the Company to enter into any parties heretofore with respect memorandum of understanding, agreement in principle, letter of intent, contract or agreement (whether written or oral) (each, a "Company Acquisition Agreement") related to any acquisition of all or any material portion of the assets of, or any equity interest in, the Company or any business combination with the Company. Notwithstanding the foregoing, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase Plan, subject to the limitations set forth in Section 3.2(d)(iv)Third-Party Acquisition.
(b) Prior to the Closing DateStockholders Meeting, if the Company, without being in violation of the terms of this Section 5.1, receives an unsolicited bona fide written proposal from any person or group with respect to a Third-Party Acquisition which the Company's Board of Directors (after consideration of advice it shall have obtained from its legal and financial advisors) reasonably expects will result in a Superior Proposal (as hereinafter defined), then the Company may, solely in response to unsolicited requests therefordirectly or indirectly, furnish non-public information regarding itself and access to any corporation, partnership, such person or other entity or group in respect of, pursuant to an appropriate confidentiality agreement and may participate in discussions and negotiate negotiations with such entity person or group; provided, however, that the terms of such confidentiality agreement shall not be less restrictive than the terms set forth in the confidentiality agreement between the Company and Parent, dated as of March 9, 2001 (the "Confidentiality Agreement").
(c) The Company shall notify Parent in writing of the receipt of any proposal, written or oral, as soon as possible, but, in any event, within twenty-four (24) hours of the receipt of any such proposal, relating to a Third-Party Acquisition or any request for non-public information relating to the Company or any of its Subsidiaries in connection with any pending, proposed or contemplated Third-Party Acquisition or for access to the properties, books or records of the Company or any Subsidiary by any person that, to the knowledge of the Company, is considering making, or has made, a proposal relating to a Third-Party Acquisition. Such notice shall identify the person submitting the proposal, attach a copy of any written correspondence or other written materials relating to such proposal, and summarize any significant terms of such proposal not reflected in any such attached materials, and, to the extent then known by the Company, state whether the Company is providing or intends to provide the person or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving making such proposal with access to information concerning the Company or any of its Subsidiaries, in accordance with this Section 5.1, including any expectation by the Company's Board of Directors, if then known, that such Third-Party Acquisition proposal will result in a Superior Proposal or, if not then known, then the Company shall thereafter give prompt notice to Parent of any subsequent determination as to the provision to the person or group making such proposal of access to such information, and any such expectation. The Company shall keep Parent informed of the status of any such negotiations and shall further update, to the extent of any significant developments, the information required to be provided in each notice upon the request of Parent.
(a "Transaction")d) Notwithstanding anything in this Agreement to the contrary, provided that (i) such entity the Company or group has submitted a written proposal its Board of Directors shall be permitted, to the extent applicable, to comply with Rule 14e-2(a) of the Exchange Act or to make any required disclosure to the stockholders of the Company if, in the good faith judgment of the Board of Directors of the Company relating (after consideration of advice it shall have obtained from its outside counsel) failure to any such Transaction (an "Alternative Proposal"), so disclose would constitute a violation of applicable law and (ii) in the entity or group enters into confidentiality agreements with event that the Company with respect to such non-public information, and (iii) the Company Board, by a majority vote, Company's Board of Directors determines in good faith, after consideration of advice it shall have obtained from its good faith judgment, based as to legal matters on the written advice of legal outside counsel, that failing failure to take such action would constitute create a breach substantial probability of violating the Company BoardCompany's Board of Directors' fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal.
(c) Neither the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transaction, or (ii) authorize, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing duties to the Company's stockholdersstockholders under applicable Law, the Company's Board of Directors may make a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offers; provided, further, that Change in the Company Recommendation and disclose to the Company's stockholders the position of the Company's Board shall not recommend that of Directors with respect to the stockholders transactions contemplated hereby or otherwise make disclosure to them, with respect to the matters to be considered at the Stockholders Meeting. Notwithstanding the foregoing, the obligation of the Company tender their shares to duly call, give notice of, convene and hold the Stockholders Meeting in connection accordance with any such tender offer unless Section 5.3 hereof shall not be affected by the commencement, proposal, public disclosure or communication to the Company of a Third-Party Acquisition or a Superior Proposal or by the taking of any action by the Company's Board by a majority vote determines of Directors in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary dutyaccordance with this Section 5.1.
(de) Nothing As used in this Section 6.1 shall (i) permit the Company to terminate this Agreement (except as specifically provided in Article 8 hereof), (ii) permit the Company to enter into any agreement with respect to a Transaction during the term of this Agreement (it being agreed that during the term of this Agreement, the term "Third-Party Acquisition" shall mean any of the following events other than, in each case, the transactions contemplated by this Agreement: (i) the merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, or any purchase or sale of the consolidated assets (including without limitation stock of Subsidiaries) of the Company shall not enter into and its Subsidiaries, taken as a whole having an aggregate value of 20% or more of the total assets of the Company, or any agreement with purchase or sale of, or tender or exchange offer for 20% or more of the equity securities of the Company, or a "merger of equals" with, any person that provides for, which includes any officer or in director of the Company or any way facilitates, a Transaction, of its affiliates or any affiliate of such officer or director) other than a confidentiality agreement in customary formSubsidiary of Parent (a "Third Party"), ; (ii) the acquisition by a Third Party of twenty percent (20%) or more of the outstanding shares of Company Common Stock; (iii) except as specifically provided in Article 8, affect the acquisition by a Third Party of Quantitude or Trip; (iv) the adoption by the Company of a plan of liquidation or the declaration or payment of an extraordinary dividend; or (v) the repurchase by the Company or any other obligation of its Subsidiaries of more than twenty percent (20%) of the outstanding shares of Company under this AgreementCommon Stock.
Appears in 1 contract
Samples: Merger Agreement (Cendant Corp)
Alternative Proposals. From the Effective Date until the Closing of the transactions contemplated by, or termination of, this Agreement, Sellers agree (a) Upon execution that none of them shall, and delivery of this Agreement, they shall direct and use their best efforts to cause the Company, its affiliates Subsidiaries and their respective the officers, directors, employees, agents and representatives of Sellers and agents shall the Subsidiaries (including, without limitation, any investment banker, attorney or accountant retained by any Seller) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its board of directors) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or equity or membership interests of, Sellers or any of the Subsidiaries (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that Sellers will immediately cease and cause to be terminated any existing activities, discussions or negotiations, if any, conducted negotiations with any parties Persons conducted heretofore with respect to any acquisition of all or any material portion of the assets offoregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section; and (c) that Sellers will notify Buyer immediately if any such inquiries or proposals are received by, any such information is requested from, or any equity interest insuch negotiations or discussions are sought to be initiated or continued with, the Company or any business combination with the Company. Notwithstanding the foregoing, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase Plan, subject to the limitations set forth in Section 3.2(d)(iv).
(b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), Seller; provided that nothing contained in this Section shall prohibit the board of directors or trustees of any Seller from (i) such entity furnishing information to or group has submitted a written proposal to the Board of Directors of the Company relating to any such Transaction (an "Alternative Proposal"), (ii) the entity or group enters entering into confidentiality agreements with the Company with respect to such non-public information, and (iii) the Company Board, by a majority vote, determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal.
(c) Neither the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) encourage, solicit, participate in or initiate discussions or negotiations with, any Person that makes an unsolicited bona fide proposal to acquire Sellers or provide any the Subsidiaries pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transactions, if, and only to the extent that, (A) the relevant board of directors or trustees determines in good faith that such action is required for the board to comply with its fiduciary duties imposed by law, (B) prior to furnishing such information to, any corporationor entering into discussions or negotiations with, partnershipsuch Person, person or other entity or group (other than Parent Sellers provide written notice to Buyer and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any TransactionVanguard to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person, and (iiC) authorize, propose or announce an intention subject to authorize or propose any Transaction confidentiality agreement with such Person (other than the Mergerwhich Sellers determined in good faith was required to be executed in order for its board to comply with fiduciary duties imposed by law), unless Sellers keep Buyer and until the Company has received an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach Vanguard informed of the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent status (not the Company Board from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to terms) of any tender offers; provided, further, that the Company Board shall not recommend that the stockholders of the Company tender their shares in connection with any such tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty.
(d) discussions or negotiations. Nothing in this Section 6.1 shall (ix) permit the Company Sellers to terminate this Agreement (except as specifically provided in Article 8 hereof)8), (iiy) permit the Company Sellers to enter into any agreement with respect to a Transaction an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company Sellers shall not enter into any agreement with any person Person that provides for, for or in any way facilitates, a Transaction, an Alternative Proposal (other than a confidentiality agreement in customary form), or (iiiz) except as specifically provided in Article 8, affect any other obligation of the Company Sellers under this Agreement.
Appears in 1 contract
Alternative Proposals. The Company agrees that prior to June 1, 1999, (a) Upon execution that they shall not, and delivery of this Agreement, they shall direct and use their best efforts to cause the Company, its affiliates and their respective 's officers, directors, stockholders, employees, agents, and representatives and agents shall (including, without limitation, any investment banker, attorney, or accountant retained by the Company) not to, initiate, solicit, or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation, or similar transaction involving the Company, or any purchase of all or any significant portion of the assets or any equity securities of the Company, or any initial public offering or private placement of the securities of the Company (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or, consistent with their corporate fiduciary obligations, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that they will immediately cease and cause to be terminated any existing discussions activities, discussions, or negotiations, if any, conducted negotiations with any parties conducted heretofore with respect to any acquisition of all or any material portion of the assets offoregoing, and they will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (c) that they will notify Parent immediately if any such inquiries or proposals are received by, any such information is requested from, or any equity interest insuch negotiations or discussions are sought to be initiated or continued with, the Company or any business combination with the Company. Notwithstanding the foregoing, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase Plan, subject to the limitations set forth in Section 3.2(d)(iv).
(b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) such entity or group has submitted a written proposal to the Board of Directors of the Company relating to any such Transaction (an "Alternative Proposal"), (ii) the entity or group enters into confidentiality agreements with the Company with respect to such non-public information, and (iii) the Company Board, by a majority vote, determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal.
(c) Neither the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transaction, or (ii) authorize, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent that, notwithstanding any other provision hereof, the Company Board from takingmay (i) engage in discussions or negotiations with a third party who (without any solicitation, initiation or encouragement, directly or indirectly, by or with the Company or its representatives after the date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning the Company and its business, properties and assets if, and disclosing only to the extent that, (A)(x) the third party has first made a bona fide Alternative Proposal in writing prior to the date upon which this Agreement and the Merger shall have been approved and adopted by the required vote of the stockholders of the Company, (y) the Company's Board of Directors concludes in good faith (after consultation with its financial advisor) that the acquisition transaction contemplated by such Alternative Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Alternative Proposal and the person making the Alternative Proposal, and could, if consummated, reasonably be expected to result in a transaction more favorable to the Company's stockholdersstockholders from a financial point of view than the Merger contemplated by this Agreement (any such Alternative Proposal, a position contemplated by Rules 14d-9 "Company Superior Proposal") and 14e-2 promulgated (z) the Company's Board of Directors shall have concluded in good faith, after considering applicable provisions of state law, and after consultation with outside counsel, that such action is required for the Board of Directors to act in a manner consistent with its fiduciary duties under applicable law and (B) prior to furnishing such information to or entering into discussions or negotiations with such persons, the Exchange Act with regard Company provides prompt notice to any tender offers; provided, further, Parent to the effect that the Company Board shall not recommend that the stockholders of the Company tender their shares in connection is furnishing information to or entering into discussions or negotiations with any such tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty.
(d) person. Nothing in this Section 6.1 7.1 shall (ix) permit the Company to terminate this Agreement (except as specifically provided in Article 8 X hereof), (iiy) permit the Company to enter into any agreement with respect to a Transaction during an Alternative Proposal prior to the term termination of this Agreement pursuant to Article X (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, a Transaction, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (iiiz) except as specifically provided in Article 8, affect any other obligation of the Company under this Agreement. Notwithstanding the foregoing, in the event that the Board of Directors of the Company shall conclude in good faith, after considering applicable state law, and after consultation with outside counsel, that such action is required for it to act in a manner consistent with its fiduciary duties under applicable law, the Board of Directors of the Company may withdraw or modify its approval or recommendation of this Agreement and the Merger.
Appears in 1 contract
Alternative Proposals. (a) Upon execution and delivery of this AgreementPrior to the Effective Time, the CompanyCompany agrees that neither it nor any of its Subsidiaries shall, and it shall direct and use its affiliates and their respective reasonable best efforts to cause its officers, directors, employees, agents and representatives and agents shall immediately cease (including, without limitation, any existing discussions investment banker, attorney or negotiationsaccountant retained by it or any of the Subsidiaries) not to, if any(i) initiate or solicit, conducted with directly or indirectly, or encourage (including by way of furnishing information) or take any parties heretofore other action to facilitate knowingly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to the stockholders of the Company) with respect to a merger, acquisition, consolidation or similar transaction involving, or any acquisition purchase of all or any material significant portion of the assets of, or any equity interest insecurities of, the Company or any business combination with the Company. Notwithstanding the foregoing, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase Plan, subject to the limitations set forth in Section 3.2(d)(iv).
its Subsidiaries (b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) such entity or group has submitted a written proposal to the Board of Directors of the Company relating to any such Transaction (proposal or offer, other than a proposal or offer made by ADS, any ADS Subsidiary, or any officer, director, employee, agent, or representative thereof, being hereinafter referred to as an "Alternative Proposal"), (ii) the entity or group enters into confidentiality agreements with the Company with respect to such non-public information, and (iii) the Company Board, by a majority vote, determines engage in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal.
(c) Neither the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) encourage, solicit, participate in or initiate discussions or negotiations withconcerning, or provide any confidential information or data to, or have any corporationdiscussions with, partnershipany Person relating to an Alternative Proposal, person or other entity otherwise facilitate any effort or group attempt to make or implement an Alternative Proposal; or (iii) subject to subsection (b) of this Section 5.1, enter into any agreement or understanding with any Person other than Parent and Merger Sub, any affiliate or associate of Parent ADS and Merger Sub or with the intent to effect any designees of Parent and Merger Sub) concerning any Transaction, or (ii) authorize, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until Alternative Proposal; PROVIDED that nothing contained in this Section 5.1 shall prohibit the Company has received an Alternative Proposal in writing and or the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice Board of legal counsel, that failing to take such action would constitute a breach Directors of the Company (the "Company Board's fiduciary duty; provided"), however, that nothing herein shall prevent the Company Board from taking, and disclosing (A) to the Company's stockholdersextent applicable, a position contemplated by Rules from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard respect to an Alternative Proposal; or (B) to the extent required by their fiduciary duties under applicable law, from providing information to, or participating in discussions or negotiations with, any tender offers; providedparty that makes an unsolicited inquiry with respect to the Company if the Company Board reasonably believes such party may propose an Alternative Proposal on terms that are superior, furtherfrom a financial point of view, to the terms of the Merger for the stockholders of the Company and that such Alternative Proposal is reasonably capable of being completed, as determined by the Company Board in good faith after consultation with its financial advisers. The Company will immediately give written notice to ADS of its receipt of any Alternative Proposal or inquiry with respect to making an Alternative Proposal, and prior to providing any requested information or entering into discussions or negotiations with such Person, require such Person to enter into with the Company a confidentiality agreement no more favorable to such Person than the Confidentiality Agreement dated March 3, 2000 between ADS and the Company. Nothing contained herein shall be construed to prohibit the Company or the Company Board from making any disclosure to its stockholders which, in the judgment of the Company Board as advised by counsel, may be required by applicable law in connection with any such proposal or offer.
(b) Except as set forth in this Section 5.1, the Company Board shall not recommend that the stockholders of the Company tender their shares in connection with any such tender offer unless the Company Board by a majority vote determines in its good faith judgmentapprove or recommend, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty.
(d) Nothing in this Section 6.1 shall (i) permit the Company to terminate this Agreement (except as specifically provided in Article 8 hereof), (ii) permit or cause the Company to enter into any agreement with respect to, any Alternative Proposal. Notwithstanding the foregoing, if the Company Board, after consultation with and based upon the advice of independent legal counsel, determines in good faith that it is necessary to do so in order to comply with its fiduciary duties to stockholders under applicable law, the Company Board may approve or recommend a Transaction during Superior Proposal (as defined below) or cause the term of this Agreement (it being agreed Company to enter into an agreement with respect to, a Superior Proposal, but in each case only after providing prompt written notice to ADS advising that during the term Company Board has determined to approve or recommend, or authorize the Company to enter into an agreement with respect to, a Superior Proposal. For purposes of this Agreement, a "Superior Proposal" means an Alternative Proposal on terms which the Company shall not enter into any agreement with any person that provides for, or Board determines in any way facilitates, a Transaction, other its good faith judgment to be more favorable to the Company's stockholders than a confidentiality agreement in customary form), or (iii) except as specifically provided in Article 8, affect any other obligation of the Company under this AgreementMerger.
Appears in 1 contract
Alternative Proposals. (a) Upon execution and delivery of this Agreement, the The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, conducted with any parties conducted heretofore with respect to any acquisition of all merger, consolidation, share exchange, tender offer or any material portion of the assets of, or any equity interest in, other business combination involving the Company or any business combination with of its Material Subsidiaries, or the Company. Notwithstanding acquisition (including by way of lease or license) in any manner of 10% or more of the foregoing, voting stock or equity or 10% or more of the Company may issue Company Common Stock issuable upon exercise consolidated assets of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase Planor any of its Material Subsidiaries, subject to the limitations set forth in Section 3.2(d)(ivother than as contemplated by this Agreement (each, a "Transaction").
(b) Prior to the Closing Date, the . The Company may, solely directly or indirectly, prior to the Company Stockholders Meeting (as defined below), furnish non-confidential information and access, in each case only in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect ofgroup, and may may, prior to the Company Stockholders Meeting, participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) concerning any Transaction if such entity or group has submitted a written proposal to the Board of Directors of Company Board, prior to the Company Stockholders Meeting, relating to any such Transaction (an "Alternative Proposal"), (ii) the entity or group enters into confidentiality agreements with and the Company with respect to such non-public information, and (iii) the Company Board, Board by a majority vote, vote determines in its good faith judgment, based after consultation as to legal matters on with outside legal counsel and after consultation as to financial matters with an investment banking firm of national reputation, that the written advice of legal counsel, Alternative Proposal is a Superior Proposal (as hereinafter defined) and that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereofthereof and thereafter keep Parent promptly advised of any development with respect thereto. Except as set forth above, unless prohibited by the terms of such proposal.
(c) Neither neither the Company nor or any of its affiliates, nor any of such Persons' its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning concerning, or enter into any agreement with respect to, any Transaction, or (ii) authorize, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing to the Company's stockholdersshareholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offers; provided, further, that the Company Board shall not recommend that the stockholders shareholders of the Company tender their outstanding shares of Company Common Stock in connection with any such tender offer or exchange offer unless the Company Board by a majority vote determines in its good faith judgment, based after consultation as to legal matters on with outside legal counsel and after consultation as to financial matters with an investment banking firm of national reputation, that the written advice of legal counsel, tender offer is a Superior Proposal and that failing to take such action would constitute a breach of the Company Board's fiduciary duty.
(d) duty under applicable laws. Nothing in this Section 6.1 5.1 shall (ix) permit the Company to terminate this Agreement (except as specifically provided in Article 8 7 hereof), (iiy) permit the Company to enter into any agreement with respect to a Transaction during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, a Transaction, other than a confidentiality agreement in customary form), or (iii) except as specifically provided in Article 8, affect any other obligation of the Company under this Agreement.the
Appears in 1 contract
Samples: Merger Agreement (Mony Group Inc)
Alternative Proposals. (a) Upon execution and delivery of this Agreement, the The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, conducted with any parties other than Parent or Merger Sub conducted heretofore with respect to any acquisition merger, consolidation, share exchange, business combination, sale, lease, license, exchange, mortgage, pledge, transfer or other disposition of all or any material portion substantial assets of the assets ofCompany other than in the ordinary course of business or sale, pledge, issuance, or any equity interest in, other transfer or disposition of shares of capital stock of the Company (other than in the ordinary course of business under the Company Stock Option Plans or the Stock Purchase Plan or pursuant to currently outstanding options or warrants) or similar transaction in each case involving or with respect to the Company or any business combination with the Company. Notwithstanding the foregoing, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase PlanSubsidiary (each, subject to the limitations set forth in Section 3.2(d)(iva "Transaction").
(b) Prior to the Closing Date, the . The Company may, solely directly or indirectly, furnish information and access, in each case only in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect ofgroup, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) concerning any Transaction if such entity or group has submitted a written proposal to the Company Board of Directors of the Company relating to any such Transaction (an "Alternative Proposal"), (ii) the entity or group enters into confidentiality agreements with and the Company with respect to such non-public information, and (iii) the Company Board, Board by a majority vote, vote determines in its good faith judgment, based as to legal matters on the written advice of outside legal counselcounsel and as to financial matters upon the advice of an investment banking firm of national reputation, that the Alternative Proposal is a Superior Proposal (as hereinafter defined) and that failing to take such action would may constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy notify Parent of the receipt of any such written proposal to Parent Superior Proposal and Merger Sub immediately after receipt the material terms and conditions thereof, unless prohibited by the and shall promptly notify Parent of any changes to such material terms of such proposal.
(c) Neither and conditions. Except as set forth above, neither the Company nor or any of its affiliates, nor any of such Persons' its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning concerning, or enter into any agreement with respect to, any Transaction, or (ii) authorize, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offers; provided, further, that the Company Board shall not recommend that the stockholders shareholders of the Company tender their outstanding shares of Company Common Stock in connection with any such tender offer or exchange offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of outside legal counselcounsel and as to financial matters upon the advice of an investment banking firm of national reputation, that the tender offer is a Superior Proposal and that failing to take such action would may constitute a breach of the Company Board's fiduciary duty.
(d) duty under applicable laws. Nothing in this Section 6.1 5.1 shall (ix) permit the Company to terminate this Agreement (except as specifically provided in Article 8 7 hereof), (iiy) permit the Company to accept or enter into any agreement with respect to a Transaction during the term of this Agreement (it being agreed that an Alternative Proposal during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, a Transaction, other than a confidentiality agreement in customary form), or (iiiz) except as specifically provided in Article 8, affect any other obligation of the Company under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Guidant Corp)
Alternative Proposals. (a) Upon execution and delivery Subject to the proviso of this AgreementSection 6.2, prior to the Effective Time, the CompanyCompany agrees that (i) neither it nor any of the Company Subsidiaries shall, and it shall use reasonable efforts to cause its affiliates and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of the Company Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction (other than a transaction contemplated and agents permitted pursuant to Section 7.2.5 hereof) involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any Company Subsidiary (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations or enter into any agreement concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal, (ii) it shall immediately cease and cause to be terminated any existing activities, discussions or negotiations, if any, conducted negotiations with any parties conducted heretofore with respect to any acquisition of all or any material portion of the assets offoregoing, and it shall take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 6.2 and (iii) it shall notify WMS as promptly as practicable if any such inquiries or proposals are received by, any such information is requested from, or any equity interest insuch negotiations or discussions are sought to be initiated or continued with, the Company or any business combination with the Company. Notwithstanding the foregoingit; provided, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase Planhowever, subject to the limitations set forth that nothing contained in this Section 3.2(d)(iv).
(b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) such entity or group has submitted a written proposal to 6.2 shall prohibit the Board of Directors of the Company relating from (a) after notice to WMS, furnishing information to, or entering into negotiations or discussions with, any such Transaction (person or entity that makes an "unsolicited bona fide Alternative Proposal"), (ii) Proposal if the entity or group enters into confidentiality agreements with Board of Directors of the Company with respect to such non-public information, and (iii) the Company Board, by a majority vote, determines in its good faith judgmentfaith, based as to legal matters on the written advice of legal after consultation with counsel, that failing the failure to take such action would constitute do so could reasonably be deemed a breach of its fiduciary duties under applicable law, (b) failing to make, withdrawing, modifying or changing the recommendation referred to the Company Board's Stockholders, the approval and adoption of this Agreement if the Board of Directors of the Company determines in good faith, after consultation with counsel, that making such recommendation, or the failure to withdraw, modify or change such recommendation, could reasonably be deemed a breach of its fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereofduties under applicable law, unless prohibited by the terms of such proposal.
(c) Neither recommending to the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transaction, or (ii) authorize, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received Stockholders an Alternative Proposal in writing and that the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice Board of legal counsel, that failing to take such action would constitute a breach Directors of the Company Board's fiduciary duty; provideddetermines in good faith, howeverafter consultation with its financial advisor, that nothing herein shall prevent is likely to be more favorable, from a financial point of view, to the Company Board from takingStockholders, and disclosing than the Merger or (d) to the Company's stockholdersextent applicable, a position contemplated by Rules 14d-9 and complying with Rule 14e-2 promulgated under the Exchange Act with regard to any tender offers; provided, further, that the Company Board shall not recommend that the stockholders of the Company tender their shares in connection with any such tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary dutyan Alternative Proposal.
(d) Nothing in this Section 6.1 shall (i) permit the Company to terminate this Agreement (except as specifically provided in Article 8 hereof), (ii) permit the Company to enter into any agreement with respect to a Transaction during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, a Transaction, other than a confidentiality agreement in customary form), or (iii) except as specifically provided in Article 8, affect any other obligation of the Company under this Agreement.
Appears in 1 contract
Alternative Proposals. (a) Upon execution and delivery of this Agreement, the Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, conducted with any parties heretofore with respect to any acquisition of all or any material portion of the assets of, or any equity interest in, the Company or any business combination with the Company. Notwithstanding the foregoing, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase Plan, subject to the limitations set forth in Section 3.2(d)(iv).
(b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) such entity or group has submitted a written proposal to the Board of Directors of the Company relating to any such Transaction (an "Alternative Proposal"), (ii) the entity or group enters into confidentiality agreements with the Company with respect to such non-public information, and (iii) the Company Board, by a majority vote, determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal.
(c) Neither the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transaction, or (ii) authorize, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offers; provided, further, that the Company Board shall not recommend that the stockholders of the Company tender their shares in connection with any such tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty.
(d) Nothing in this Section 6.1 shall (i) permit the Company to terminate this Agreement (except as specifically provided in Article 8 hereof), (ii) permit the Company to enter into any agreement with respect to a Transaction during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, a Transaction, other than a confidentiality agreement in customary form), or (iii) except as specifically provided in Article 8, affect any other obligation of the Company under this Agreement.regard
Appears in 1 contract
Alternative Proposals. Prior to the Effective Date, the Company agrees: (a) Upon execution that neither it nor any of its Subsidiaries shall, and delivery of this Agreement, the Company, it shall direct and use its affiliates and their respective best efforts to cause its officers, directors, employees, agents and representatives and agents shall (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations, if any, conducted negotiations with any parties conducted heretofore with respect to any acquisition of all or any material portion of the assets offoregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.8; and (c) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is requested from, or any equity interest insuch negotiations or discussions are sought to be initiated or continued with, the Company or any business combination with the Company. Notwithstanding the foregoingit; PROVIDED, the Company may issue Company Common Stock issuable upon exercise of the Company Options outstanding on the date hereof and pursuant to the Stock Purchase PlanHOWEVER, subject to the limitations set forth that nothing contained in this Section 3.2(d)(iv).
(b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "Transaction"), provided that (i) such entity or group has submitted a written proposal to 7.8 shall prohibit the Board of Directors of the Company relating from furnishing information to any such Transaction (person or entity that makes an "Alternative Proposal"), if, and only to the extent that, (iiA) the entity or group enters into confidentiality agreements with Board of Directors of the Company determines in good faith after consultation with respect outside counsel that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) the Alternative Proposal is a Superior Proposal, (C) the Company provides Parent with a true and complete copy of such non-public informationproposal as soon as practicable after the receipt thereof, and (iiiD) the Company Board, by a majority vote, determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal.
(c) Neither the Company nor any of its affiliates, nor any of such Persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transaction, or (ii) authorize, propose or announce an intention to authorize or propose any Transaction (other than the Merger), unless and until the Company has received an Alternative Proposal in writing and the Company Board, by majority vote, has determined in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing to the Company's stockholdersextent applicable, a position contemplated by Rules 14d-9 and complying with Rule 14e-2 promulgated under the Exchange Act with regard to any tender offers; provided, further, that the Company Board shall not recommend that the stockholders of the Company tender their shares in connection with any such tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the written advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty.
(d) an Alternative Proposal. Nothing in this Section 6.1 7.8 shall (ix) permit the Company to terminate this Agreement (except as specifically provided in Article 8 IX hereof), (iiy) permit the Company to have discussions, negotiations or to enter into any agreement with respect to a Transaction an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any discussion, negotiation or agreement with any person that provides for, or in any way facilitates, a Transaction, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (iiiz) except as specifically provided in Article 8, affect any other obligation of the Company under this Agreement. As used in this Agreement, a "Superior Proposal" means a bona fide written offer to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combinations or other similar transaction (which offer shall not be subject to any conditions that are more onerous to the Company than the conditions to Parent and Sub's obligations to consummate the Merger; provided, however, that such offer may be subject to confirmatory due diligence to be effected within a five (5) business day period): (i) that the Board of Directors of the Company determines, in good faith after consultation with a nationally recognized investment banking firm which provided a written opinion to such effect, provides a higher value per share to the stockholders of the Company than the Merger Consideration after taking into account, among other things, the reasonable likelihood the Effective Date will occur as compared to when the closing of such Alternative Proposal will occur; (ii) that is not subject to any financing condition (and the offeror has on hand funds available or committed financing to consummate the offer and the transactions contemplated; thereby); (iii) does not have any condition to closing or rights to terminate more onerous to the Company than the provisions set forth in Articles VIII or IX hereof; and (iv) does not involve any substantive legal impediments that are reasonably likely to prevent such Alternative Proposal from closing.
Appears in 1 contract
Samples: Merger Agreement (Physician Corporation of America /De/)
