Alternative Proposals. Prior to the Effective Time, the Company agrees (a) that neither it nor any of its Subsidiaries shall, nor shall it or any of its Subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) to, initiate, solicit or knowingly 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 any equity securities of, the Company or all or any significant portion of the assets of the Company or 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 or entity relating to an Alternative Proposal or otherwise take any action to knowingly 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 with any person or entity conducted heretofore with respect to any of the foregoing and will take the necessary steps to inform any such person or entity of the obligations under this Section 5.1; and (c) that it will notify the Purchaser immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 5.1 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited, bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to the Merger, if, and only to the extent that, (A) the Board of Directors of the Company, based upon the advice of outside counsel, determines in good faith 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, or entering into discussions or negotiations with, such person or entity, the Company provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company keeps the Purchaser informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 shall (A) permit the Company to terminate this Agreement (except as specifically provided in Article 7 hereof), (B) permit the Company to enter into any agreement with respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (C) affect any other obligation of the Company under this Agreement.
Appears in 1 contract
Alternative Proposals. Prior to the Effective Time, the The Company agrees (a) that that, between the date hereof and the Effective Time, neither it nor any of its Subsidiaries shall, nor and it shall it or any of direct and use its Subsidiaries permit their respective best efforts to cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit or knowingly 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 all or any significant portion of the assets of the Company or 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, afford access to the properties, books or records of the Company or any of its Subsidiaries to, or have any discussions with, any person or entity Person relating to an Alternative Proposal Proposal, or otherwise take any action to knowingly 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 with any person or entity parties conducted heretofore with respect to any of the foregoing foregoing, and it will take the necessary steps to inform any such person or entity parties of the obligations under undertaken in this Section 5.16.1; and (c) that it will notify Parent immediately of the Purchaser immediately identity of the potential acquirer and the terms of such Person's or entity's proposal if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, itthe Company; provided, however, that nothing contained in this Section 5.1 6.1 shall prohibit the Board of Directors Company or its Subsidiaries, upon approval of the Company Special Committee, from (i) prior to the acceptance for payment of shares of Common Stock by Purchaser pursuant to the Offer, furnishing information to to, or entering into discussions or negotiations with, any person Person or entity that makes an unsolicited, unsolicited bona fide Alternative Proposal or delivers an unsolicitedproposal to acquire the Company pursuant to a merger, bona fideconsolidation, written expression share exchange, purchase of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors substantially all of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders assets of the Company as compared to the MergerCompany, a business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of such proposal was not initially solicited, encouraged or knowingly facilitated by the Company, based upon its Subsidiaries or their agents in violation of this Section 6.1, (B) such proposal is not subject to a financing condition and involves consideration that provides a higher value per share than the advice of outside counselMerger Consideration, (C) the Company Board, or the Company's directors constituting the Special Committee, determines in good faith based on the advice of outside counsel that the taking of such action is required for the Board of Directors to comply would be inconsistent with its fiduciary duties to stockholders imposed by lawLaw, and (BD) prior to furnishing such information to, or entering into discussions or negotiations with, such person Person or entity, the Company provides written notice to the Purchaser Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person Person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the . The Company keeps the Purchaser shall keep Parent immediately informed of the status and all material information with respect to of any such discussions or negotiationsnegotiations (including the identify of such Person or entity and the terms of any proposal); and (ii) to the extent applicable, complying with Rule 14e-2 14e-2(a) promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 6.1 shall (Ax) permit the Company to terminate this Agreement (except as specifically provided in Article 7 8 hereof), (By) permit the Company to enter into any agreement with respect to an Alternative Proposal for as long as during the term of this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form))Agreement, or (Cz) affect any other obligation of the Company under this Agreement. Notwithstanding anything to the contrary in this Section 6.1, Parent and Purchaser have advised the Company Board that they have no intention of selling the Parent Shares or the Shares acquired by Purchaser in the Offer pursuant to such an Alternative Proposal.
Appears in 1 contract
Alternative Proposals. Prior to the Effective Time, the Company PanEnergy agrees (a) that neither it nor any of its Subsidiaries shall, nor and it shall it or any of direct and use reasonable efforts to cause its Subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its SubsidiariesSubsidiaries or any of the foregoing) to, not to initiate, solicit or knowingly 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 any equity securities of, the Company or all or any significant portion of the assets of the Company or its Subsidiaries an Alternative Proposal (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"defined below) or engage in any negotiations concerning, or provide any confidential non-public information or data to, or have any discussions with, any person or entity relating to an Alternative Proposal Proposal, or otherwise take any action to knowingly 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 with any person or entity parties conducted heretofore with respect to any of the foregoing foregoing, and it will take the necessary steps to inform any such person the individuals or entity entities referred to above of the obligations under undertaken in this Section 5.18.1; and (c) that it will notify the Purchaser Duke immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 5.1 8.1 shall prohibit the Board of Directors of the Company PanEnergy from (i) furnishing information (pursuant to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to or entering into discussions or negotiations with, any person or entity that makes an unsolicited, unsolicited bona fide Alternative Proposal proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected offer to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared PanEnergy, to the Mergeracquire PanEnergy pursuant to a merger, consolidation, share purchase, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company, based PanEnergy determines in good faith upon the advice of outside counsel, determines in good faith 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, or entering into discussions or negotiations with, such person or entity, the Company PanEnergy provides written notice to Duke of the Purchaser to identity of the effect person or entity making the Alternative Proposal and that it is furnishing intends to furnish information to, or entering intends to enter into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company PanEnergy keeps the Purchaser Duke informed on a timely basis of the status and all material information with respect to of any such discussions or negotiationsnegotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (D) in the event that the Board of Directors of PanEnergy determines to accept any such Alternative Proposal (in accordance with subclause (A) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal to such Alternative Proposal; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 8.1 shall (Ax) permit the Company PanEnergy to terminate this Agreement (except as specifically provided in Article 7 10 hereof), (By) permit the Company PanEnergy to enter into any agreement with respect to an Alternative Proposal for as long as during the term of this Agreement remains in effect (it being agreed that for as long as during the term of this Agreement remains in effectAgreement, the Company PanEnergy shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary formdeemed appropriate by the Board of Directors of PanEnergy)), or (Cz) affect any other obligation of the Company PanEnergy under this Agreement.. "Alternative Proposal"
Appears in 1 contract
Alternative Proposals. Prior to the Effective Time, the Company agrees (a) that neither it nor any of its Subsidiaries shall, nor shall it or any of its Subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) to, initiate, solicit or knowingly 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 any equity securities of, the Company or all or any significant portion of the assets of the Company or 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 or entity relating to an Alternative Proposal or otherwise take any action to knowingly 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 with any person or entity conducted heretofore with respect to any of the foregoing and will take the necessary steps to inform any such person or entity of the obligations under this Section 5.1; and (c) that it will notify the Purchaser immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 5.1 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited, bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to the Merger, if, and only to the extent that, (A) the Board of Directors of the Company, based upon the advice of outside counsel, determines in good faith 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, or entering into discussions or negotiations with, such person or entity, the Company provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company keeps the Purchaser informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 shall (A) permit the Company to terminate this Agreement (except as specifically provided in Article 7 hereof), (B) permit the Company to enter into any agreement with respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (C) affect any other obligation of the Company under this Agreement.action
Appears in 1 contract
Alternative Proposals. Prior to the Effective Time, the The Company agrees (a) that that, between the date hereof and the consummation of the Offer, neither it nor any of its Subsidiaries shall, nor and it shall it or any of direct and use its Subsidiaries permit their respective best efforts to cause its officers, directors, managing directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (collectively, "Representatives") not to, initiate, solicit or knowingly 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 stockholdersshareholders), (i) with respect to a merger, acquisition, consolidation consolidation, recapitalization, business combination or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or all or any significant portion of the assets of the Company or 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, afford access to the properties, books or records of the Company or any of its Subsidiaries to, or have any discussions with, any person or entity Person relating to an Alternative Proposal Proposal, or otherwise take any action to knowingly facilitate any effort or attempt to make or implement an Alternative ProposalProposal or any agreement or arrangement requiring the Company to abandon, terminate or delay the consummation of the Offer or other transactions contemplated by this Agreement; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any person or entity parties conducted heretofore with respect to any of the foregoing foregoing, and it will take the necessary steps to inform any such person or entity parties of the obligations under undertaken in this Section 5.1; and (c) that it will notify Purchaser promptly of the Purchaser immediately identity of the potential acquiror and the terms of such Person's proposal if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, itthe Company; provided, however, that nothing contained in this Section 5.1 shall prohibit the Company's Supervisory Board or Board of Directors of the Company Management from (i) prior to the acceptance for payment of Common Shares by Offer Sub pursuant to the Offer, furnishing information to to, or entering into discussions or negotiations with, any person or entity Person that makes an unsolicited, unsolicited bona fide Alternative Proposal or delivers an unsolicitedproposal to acquire the Company pursuant to a merger, bona fideconsolidation, written expression share exchange, purchase of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors substantially all of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders assets of the Company as compared to the MergerCompany, a business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of such proposal was not initially solicited, encouraged or knowingly facilitated by the Company, based upon the advice its Subsidiaries or their Representatives in violation of outside counsel, determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by lawthis Section 5.1, (B) if each Board determines in good faith, after receiving the advice of its outside advisors, including outside counsel and others, (i) that such Alternative Proposal is more favorable from a financial point of view as compared to the Offer and (ii) failure to furnish such information or enter into such discussions or negotiations with such Person would violate the Boards' fiduciary duties, (C) the Boards of the Company determine in good faith in the exercise of reasonable business judgment that such proposal is likely to be successfully financed if accepted by shareholders, and (D) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company enters into a confidentiality agreement with the Person or entity with terms no less favorable to the Company than the Confidentiality Agreement between Parent and the Company and provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Person. The Company keeps the shall keep Purchaser reasonably informed of the status and all material information with respect to of any such discussions or negotiationsnegotiations (including the identity of such Person and the terms of any proposal); and (ii) to the extent applicable, complying with Rule 14e-2 14e-2(a) promulgated under the Exchange Act or with applicable Dutch Law with regard to an Alternative Proposal. Nothing in this Section 5.1 shall (Ax) permit the Company to terminate this Agreement (except as specifically provided in Article 7 6 hereof), (By) permit the Company to enter into any agreement with respect to an Alternative Proposal for as long as during the term of this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form))Agreement, or (Cz) affect any other obligation of the Company under this Agreement.
Appears in 1 contract
Alternative Proposals. Prior The Company agrees that, except as and to the Effective Timeextent consented to by the Noteholders, the Company agrees (a) that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, nor and that it shall it or any of direct and use its Subsidiaries permit their respective officers, directors, best efforts to cause its and its Subsidiaries' employees, agents and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit or knowingly encourage, directly or indirectly, initiate, solicit, encourage or otherwise facilitate 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, acquisitionreorganization, share exchange, consolidation or similar transaction involving, involving (or any purchase purchase, issuance or exchange of any equity securities of, the Company 20% or all or any significant portion more of the assets or indebtedness or any equity or debt securities of) it or any of the Company or its Subsidiaries (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning). Notwithstanding the foregoing, or provide any confidential information or data to, or have any discussions with, any person or entity relating to an Alternative Proposal or otherwise take any action to knowingly 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 with any person or entity conducted heretofore with respect to any of the foregoing and will take the necessary steps to inform any such person or entity of the obligations under this Section 5.1; and (c) that it will notify the Purchaser immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 5.1 Agreement shall prohibit prevent the Company or its Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited, bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to the Merger, if, and only to the extent that, (A) the Board of Directors of the Company, based upon the advice of outside counsel, determines in good faith 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, or entering into discussions or negotiations with, such person or entity, the Company provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company keeps the Purchaser informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing ; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Alternative Proposal if the Board of Directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreements (as defined below), it being understood that such confidentiality agreement need not prohibit the making, or amendment, of an Alternative Proposal; (C) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Alternative Proposal; or (D) recommending such an Alternative Proposal to the stockholders and noteholders of the Company, if and only to the extent that in the case referred to in this Section 5.1 shall clause (A) permit D), the Board of Directors of the Company (i) determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to terminate comply with their fiduciary duties under applicable law and (ii) determines in good faith (after consultation with its financial advisor) that such Alternative Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a transaction more favorable from a financial point of view to the Company and the Persons to whom fiduciary duties are owed by the Board of Directors than the transactions contemplated by this Agreement (except as specifically provided in Article 7 hereof), (B) permit the Company to enter into any agreement with respect to an such more favorable Alternative Proposal for as long as being referred to in this Agreement remains as a "Superior Proposal"). The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in effect (the first sentence hereof of the obligations undertaken in this Section. The Company agrees that it being agreed that for as long as this Agreement remains will notify the Holders immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its representatives indicating, in effectconnection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep the Holders informed, on a current basis, on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. The Company shall not enter into also agrees that it will take all steps to maintain and enforce any agreement heretofore executed confidentiality agreements in connection with any person that provides for, or in any way facilitates, an its consideration of a potential Alternative Proposal (other than a confidentiality agreement in customary form)), or (C) affect any other obligation of the Company under this AgreementProposal.
Appears in 1 contract
Samples: Restructuring Agreement (Personnel Group of America Inc)
Alternative Proposals. Prior to the Effective Time, the Company PanEnergy agrees (a) that neither it nor any of its Subsidiaries shall, nor and it shall it or any of direct and use reasonable efforts to cause its Subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its SubsidiariesSubsidiaries or any of the foregoing) to, not to initiate, solicit or knowingly 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 any equity securities of, the Company or all or any significant portion of the assets of the Company or its Subsidiaries an Alternative Proposal (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"defined below) or engage in any negotiations concerning, or provide any confidential non-public information or data to, or have any discussions with, any person or entity relating to an Alternative Proposal Proposal, or otherwise take any action to knowingly 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 with any person or entity parties conducted heretofore with respect to any of the foregoing foregoing, and it will take the necessary steps to inform any such person the individuals or entity entities referred to above of the obligations under undertaken in this Section 5.18.1; and (c) that it will notify the Purchaser Duke immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 5.1 8.1 shall prohibit the Board of Directors of the Company PanEnergy from (i) furnishing information (pursuant to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to or entering into discussions or negotiations with, any person or entity that makes an unsolicited, unsolicited bona fide Alternative Proposal proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected offer to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared PanEnergy, to the Mergeracquire PanEnergy pursuant to a merger, consolidation, share purchase, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company, based PanEnergy determines in good faith upon the advice of outside counsel, determines in good faith 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, or entering into discussions or negotiations with, such person or entity, the Company PanEnergy provides written notice to Duke of the Purchaser to identity of the effect person or entity making the Alternative Proposal and that it is furnishing intends to furnish information to, or entering intends to enter into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company PanEnergy keeps the Purchaser Duke informed on a timely basis of the status and all material information with respect to of any such discussions or negotiationsnegotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (D) in the event that the Board of Directors of PanEnergy determines to accept any such Alternative Proposal (in accordance with subclause (A) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal to such Alternative Proposal; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 8.1 shall (Ax) permit the Company PanEnergy to terminate this Agreement (except as specifically provided in Article 7 10 hereof), (By) permit the Company PanEnergy to enter into any agreement with respect to an Alternative Proposal for as long as during the term of this Agreement remains in effect (it being agreed that for as long as during the term of this Agreement remains in effectAgreement, the Company PanEnergy shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary formdeemed appropriate by the Board of Directors of PanEnergy)), or (Cz) affect any other obligation of the Company PanEnergy under this Agreement.. "Alternative Proposal" shall mean any merger, acquisition, consolidation, reorganization, share exchange, tender offer, exchange offer or similar transaction involving PanEnergy or any of PanEnergy's Significant Subsidiaries, or any proposal or offer to acquire in any manner, directly or indirectly, a substantial equity interest in or a substantial portion of the assets of PanEnergy or any of PanEnergy'
Appears in 1 contract
Samples: A) Agreement and Plan of Merger (Duke Power Co /Nc/)
