Company No Solicitation. (a) Except as permitted by this Section 5.03, from the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize any Representatives of the Company or any Company Subsidiary to, directly or indirectly, (i) solicit, initiate, knowingly encourage or take any other action to knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, (ii) enter into any agreement, letter of intent, memorandum of understanding or other similar instrument with respect to any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03) or (iii) enter into, continue, conduct, engage or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or for the purpose of encouraging or facilitating, any Company Takeover Proposal. The Company shall, shall cause the Company Subsidiaries, and shall direct its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted theretofore with respect to any Company Takeover Proposal and request that any such Person promptly return and/or destroy all confidential information concerning the Company and the Company’s Subsidiaries to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, prior to obtaining Company Stockholder Approval, the Company and its Representatives may, in response to each (if any) Company Takeover Proposal made after the date hereof that does not result from a material breach of this Section 5.03, (y) contact the Person making such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if the Company Board determines in good faith, after consultation with outside legal counsel and independent financial advisors, that such Company Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Company Proposal, (1) provide access to or furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement; provided, that the Company will prior to or concurrently with the time such information is provided to such Person provide Parent with all non-public information regarding the Company that has not previously been provided to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and its Representatives making such Company Takeover Proposal.
Appears in 2 contracts
Samples: Merger Agreement (Steadfast Apartment REIT, Inc.), Merger Agreement (Independence Realty Trust, Inc.)
Company No Solicitation. (a) Except The Company will not, and the Company will cause each of its Subsidiaries and its and their respective directors, officers and employees, and will use its reasonable best efforts to cause its other Representatives not to, except as expressly permitted by this Section 5.03, from the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it authorize 4.2 or permit any Company Subsidiary to, nor shall it authorize any Representatives of the Company or any Company Subsidiary toSection 4.5, directly or indirectly, :
(i) solicit, initiate, knowingly encourage or take any other action to knowingly facilitate any inquiryinquiries regarding, discussionor the submission or announcement by any Person (other than Parent or its Subsidiaries) of, any proposal or offer or request that constitutes, or could would reasonably be expected to lead to, a any Company Takeover Acquisition Proposal, ;
(ii) enter into furnish any agreementinformation regarding the Company or any Subsidiary of the Company in connection with, letter for the purpose of intentsoliciting, memorandum of understanding initiating, encouraging or other similar instrument with respect to any facilitating, or in response to, a Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03) or Acquisition Proposal;
(iii) enter into, continue, conduct, engage in or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or for the purpose of encouraging or facilitating, any Company Takeover Proposal. The Company shall, shall cause the Company Subsidiaries, and shall direct its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted theretofore (other than Parent or its Representatives) with respect to any Company Takeover Acquisition Proposal and request or any inquiry, proposal or offer that would reasonably be expected to lead to any such Person promptly return and/or destroy all confidential information concerning the Company and the Company’s Subsidiaries Acquisition Proposal; or
(iv) approve, adopt, recommend or enter into, or propose to approve, adopt, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle with respect to any Company Acquisition Proposal; provided, however, that, notwithstanding anything to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything contrary contained in this Agreement to the contraryAgreement, prior to obtaining the Required Company Stockholder ApprovalVote, the Company and its Representatives maymay engage or otherwise participate in discussions or negotiations with, in response to each and provide information to, any Person (if anyor its Representatives) that has made a bona fide written Company Takeover Acquisition Proposal made after the date hereof that does did not result from a material any breach of this Section 5.034.2(a) by the Company, any of its Subsidiaries or any of its or their respective Representatives if: (yA) contact the Person making prior to taking any such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if action, the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent its financial advisorsadvisor, that such Company Takeover Acquisition Proposal either constitutes a Company Superior Proposal or could reasonably be expected to lead to a Company Superior Proposal; and (B) prior to providing any information regarding the Company or any Subsidiary of the Company to such third party in response to such Company Acquisition Proposal, the Company receives from such third party (1or there is then in effect with such party) provide access an executed confidentiality agreement that contains nondisclosure provisions that are at least as restrictive of such third party as the Confidentiality Agreement and that does not prohibit compliance by the Company with this Section 4.2. Prior to or furnish substantially concurrently with providing any non-public information to such third party, the Company shall make such non-public information available to Parent (to the extent such non-public information has not been previously made available by the Company to Parent). The Company shall promptly (and in any event within 24 hours) inform Parent if the Company furnishes non-public information and/or enters into discussions or negotiations as provided for in this Section 4.2(a) and will keep Parent reasonably informed, on a current basis, of the status and terms of any Company Acquisition Proposal (including any material changes to the terms thereof) and the status of any discussions and negotiations with respect thereto.
(b) If the Company receives a Company Acquisition Proposal or any inquiry or request for information with respect to a Company Acquisition Proposal or that is reasonably likely to lead to a Company Acquisition Proposal, then the Company shall promptly (and in no event later than 48 hours after its receipt of such Company Acquisition Proposal or request) notify Parent in writing of such Company Acquisition Proposal or request (which notification shall include the identity of the Person making or submitting such request or Company Acquisition Proposal and a copy of any such written request or proposal (or, if not in writing, the material terms and conditions thereof)), and the Company Subsidiaries shall thereafter keep Parent reasonably informed, on a current basis (and, in any event, within 24 hours), of the status of such Company Acquisition Proposal or request, including informing Parent of any material change to the Person making terms of such Company Takeover Proposal Acquisition Proposal, and the status of any negotiations, including any change in its intentions as previously notified.
(c) Promptly following the execution and delivery of this Agreement, the Company shall, and shall cause each of its Affiliates and its and their respective directors, officers and employees, and shall use reasonable best efforts to cause its other Representatives pursuant to, immediately cease and cause to an Acceptable Confidentiality Agreement; providedbe terminated any existing solicitation of, that the Company will prior to or concurrently with the time such information is provided to such Person provide Parent with all non-public information regarding the Company that has not previously been provided to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such with, any Person (other than Parent and its Representatives) relating to any Company Acquisition Proposal made prior to the date hereof. The Company shall not, and shall cause its Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which the Company or any of its Affiliates is a party.
(d) Any violation of the restrictions contained in this Section 4.2 by any of the Company’s Representatives making such Company Takeover Proposalshall be deemed to be a breach of this Section 4.2 by the Company.
Appears in 2 contracts
Samples: Merger Agreement (Analog Devices Inc), Merger Agreement (Maxim Integrated Products Inc)
Company No Solicitation. (a) Except The Company will not, and the Company will cause each of its Subsidiaries and its and their respective directors, officers and U.S. employees, and will use its reasonable best efforts to cause its other Representatives, not to, except as expressly permitted by this Section 5.03, from the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it authorize 4.2 or permit any Company Subsidiary to, nor shall it authorize any Representatives of the Company or any Company Subsidiary toSection 4.4, directly or indirectly, :
(i) solicit, initiate, knowingly encourage or take any other action to knowingly facilitate any inquiries regarding, or the submission or announcement by any Person (other than Parent or its Subsidiaries) of, any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal;
(ii) furnish any information regarding the Company or any Subsidiary of the Company (other than to Parent and its Subsidiaries) in connection with, or for the purpose of soliciting, initiating, encouraging or facilitating, or in response to, any inquiry, discussionproposal or offer that constitutes or would reasonably be expected to lead to a Company Acquisition Proposal;
(iii) engage in, enter into, continue or otherwise participate in any discussions or negotiations with any Person (other than Parent or its Representatives) with respect to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Company Acquisition Proposal;
(iv) approve, adopt, recommend, agree to or request enter into, or propose to approve, adopt, recommend, agree to or enter into, any letter of intent, memorandum of understanding or similar document, agreement, commitment, or agreement in principle with respect to any Company Acquisition Proposal; or
(v) resolve or agree to do any of the foregoing. provided, however, that, notwithstanding anything to the contrary contained in this Agreement, prior to obtaining the Required Company Stockholder Vote, the Company and its Representatives may engage or otherwise participate in discussions or negotiations with, and provide information to, any Person (or its Representatives) that has made a bona fide written Company Acquisition Proposal after the date hereof that did not result from any material breach of this Section 4.2(a) or Section 4.2(c) by the Company, any of its Subsidiaries or any of its or their respective Representatives if: (A) prior to taking any such action, the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and its financial advisor, that such Company Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Company Takeover Superior Proposal; and (B) prior to providing any information regarding the Company or any Subsidiary of the Company to such third party in response to such Company Acquisition Proposal, the Company receives from such third party (iior there is then in effect with such party) enter into any agreement, letter an executed confidentiality agreement that contains nondisclosure provisions that are at least as restrictive of intent, memorandum of understanding or other similar instrument with respect to any such third party as the Non-Disclosure Agreement and that does not prohibit compliance by the Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03) 4.2. Prior to or (iii) enter into, continue, conduct, engage or otherwise participate in any discussions or negotiations regarding, or furnish to any Person concurrently with providing any non-public information with respect toto such third party, or for the purpose of encouraging or facilitating, any Company Takeover Proposalshall make such non-public information available to Parent (to the extent such non-public information has not been previously made available by the Company to Parent). The Company shall, shall cause promptly (and in any event within one (1) Business Day) inform Parent if the Company Subsidiariesfurnishes non-public information and/or enters into discussions or negotiations as provided for in this Section 4.2(a) and will keep Parent reasonably informed, on a current basis (and, in any event, within one (1) Business Day), of the status and terms of any Company Acquisition Proposal (including any material changes to the terms thereof) and the status of any discussions and negotiations with respect thereto.
(b) If the Company receives a Company Acquisition Proposal or any inquiry or request for information with respect to a Company Acquisition Proposal or that is reasonably likely to lead to a Company Acquisition Proposal, then the Company shall promptly (and in no event later than one (1) Business Day after its receipt of such Company Acquisition Proposal or request) notify Parent in writing of such Company Acquisition Proposal or request (which notification shall include the identity of the Person making or submitting such request or Company Acquisition Proposal and a copy of any such written request or proposal (or, if not in writing, the material terms and conditions thereof)), together with copies of any proposed transaction agreements, and the Company shall thereafter keep Parent reasonably informed, on a current basis (and, in any event, within one (1) Business Day), of the status of such Company Acquisition Proposal or request, including informing Parent of any material change to the terms of such Company Acquisition Proposal, and the status of any negotiations, including any change in its intentions as previously notified.
(c) Promptly following the execution and delivery of this Agreement, the Company shall, and shall direct cause each of its Subsidiaries and its and their respective directors, officers and U.S. employees, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease and cause to be terminated all any existing solicitation of, or discussions and or negotiations with with, any Person conducted theretofore with respect (other than Parent and its Representatives) relating to any Company Takeover Acquisition Proposal made prior to the date hereof and request that any access any such Person promptly return and/or destroy all confidential information concerning the Persons may have to any physical or electronic data room relating to any potential Company and the Company’s Subsidiaries Acquisition Proposal. Except to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, prior to obtaining Company Stockholder Approval, the Company and its Representatives may, in response to each (if any) Company Takeover Proposal made after the date hereof that does not result from a material breach of this Section 5.03, (y) contact the Person making such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent financial advisors, that failure to take such Company Takeover Proposal constitutes or could action would reasonably be expected to lead to a Superior be inconsistent with the Company Proposal, (1) provide access to or furnish information with respect Board’s fiduciary duties to the Company and its stockholders under applicable law, the Company shall not, and shall cause its controlled Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which the Company or any of its controlled Affiliates is a party.
(d) Any violation of the restrictions contained in this Section 4.2 by any of the Company’s Subsidiaries or any Representatives of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.2 by the Company.
(e) Notwithstanding anything to the Person making such contrary contained in this Section 4.2, prior to the receipt of the Required Company Takeover Proposal and Stockholder Vote, the Company shall be permitted, through its Representatives or otherwise, to seek clarification from (but not, unless otherwise allowed pursuant to an Acceptable Confidentiality this Agreement; provided, that the Company will prior to engage in any negotiations with or concurrently with the time such information is provided to such Person provide Parent with all any non-public information regarding to) any Person that has made a Company Acquisition Proposal solely to clarify and understand the terms and conditions of such proposal to provide adequate information for the Company that has not previously been provided Board to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and its Representatives making such Company Takeover Proposalmake an informed determination under Section 4.2(a).
Appears in 2 contracts
Samples: Merger Agreement (Viasat Inc), Merger Agreement (RigNet, Inc.)
Company No Solicitation. (a) Except The Company will not, and the Company will cause each of the Company Subsidiaries not to, and will instruct its and their respective Representatives not to, except as expressly permitted by this Section 5.034.2 or Section 4.4, directly or indirectly:
(i) solicit, initiate, knowingly encourage, knowingly induce, knowingly assist or knowingly facilitate any inquiries regarding, or the submission or announcement by any Person (other than Parent or its Affiliates or their respective Representatives) of, any proposal or offer that constitutes, or would reasonably be expected to lead to, any Company Acquisition Proposal (provided, however, that the Company and its Representatives may refer the Person making such proposal or offer to the provisions of this Section 4.2 and make inquiries of a Person making a Company Acquisition Proposal (and its Representatives) to solely clarify the terms of such Company Acquisition Proposal for the purpose of the Company Board informing itself about such Company Acquisition Proposal);
(ii) furnish any information regarding the Company or any Company Subsidiary (other than to Parent and the Parent Subsidiaries), or afford access to the Company’s or the Company Subsidiaries’ Representatives, books, records or property, in each case, in connection with, or for the purpose of soliciting, initiating, encouraging or facilitating, or in response to, any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Company Acquisition Proposal;
(iii) engage in, enter into, continue or otherwise participate in any discussions or negotiations with any Person (other than Parent or its Representatives) with respect to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Company Acquisition Proposal (provided, however, that the Company and its Representatives may refer the Person making any such inquiry, proposal or offer to the provisions of this Section 4.2 and make inquiries of a Person making a Company Acquisition Proposal (and its Representatives) to solely clarify the terms of, such Company Acquisition Proposal for the purpose of the Company Board informing itself about such Company Acquisition Proposal);
(iv) approve, adopt, recommend, agree to or enter into, or publicly propose to approve, adopt, recommend, agree to or enter into, any letter of intent, memorandum of understanding or similar document, agreement, commitment, or agreement in principle with respect to any Company Acquisition Proposal; or
(v) resolve or agree to do any of the foregoing; provided, however, that, notwithstanding anything to the contrary contained in this Agreement, prior to obtaining the Required Company Shareholder Vote, the Company and its Representatives may engage or otherwise participate in discussions or negotiations with, and provide information to, any Person (or its Representatives and financing sources and their Representatives) that has made a bona fide written Company Acquisition Proposal after the date hereof that did not result from any material breach of this Section 4.2(a) by the Company if: (I) prior to taking any such action, the Company Special Committee determines in good faith, after consultation with its outside legal counsel and its financial advisor, that such Company Acquisition Proposal either constitutes a Company Superior Proposal or could reasonably be expected to lead to a Company Superior Proposal; and (II) prior to providing any information regarding the Company or any Company Subsidiary to such third party in response to such Company Acquisition Proposal, the Company enters into (or there is in effect at such time) an Acceptable Confidentiality Agreement with such third party. Prior to or substantially concurrently with providing any non-public information to such third party, the Company shall make such non-public information available to Parent (to the extent such non-public information has not been previously made available by the Company to Parent). The Company shall promptly (and in any event within 48 hours following the furnishing of non-public information and/or the Company entering into discussions or negotiations contemplated by this Section 4.2(a)) inform Parent if the Company furnishes non-public information and/or enters into discussions or negotiations as provided for in this Section 4.2(a) and will keep Parent reasonably informed, on a reasonably current basis (and, in any event, within 48 hours of any material development relating to any Company Acquisition Proposal), of the status and material terms of any Company Acquisition Proposal (including any material changes to the material terms thereof) and the status of any material discussions and negotiations with respect thereto.
(b) From the date hereof until the earlier to occur of the First Effective Time, or, if earlier, Time and the termination of this Agreement in accordance with its terms, if the Company receives a Company Acquisition Proposal (or notice from any Person that it intends to make a Company Acquisition Proposal) or any inquiry or request for information with respect to a Company Acquisition Proposal or that is reasonably likely to lead to a Company Acquisition Proposal, then the Company shall notpromptly (and in no event later than 48 hours after its receipt of such Company Acquisition Proposal or request) notify Parent in writing of such Company Acquisition Proposal or request (which notification shall include the identity of the Person making or submitting such request or Company Acquisition Proposal and an unredacted copy of any such written request or proposal (or, nor if not in writing, the material terms and conditions thereof)), together with copies of any proposed transaction agreements, and the Company shall it authorize or permit thereafter keep Parent reasonably informed, on a reasonably current basis (and, in any event, within 48 hours), of the status of such Company Subsidiary toAcquisition Proposal, nor including informing Parent of any material change to the terms of such Company Acquisition Proposal, and the status of any negotiations, including any change in its intentions as previously notified.
(c) Promptly following the execution and delivery of this Agreement (and in any event within 24 hours after the execution and delivery of this Agreement), the Company shall, and shall it authorize any Representatives cause each of the Company or any Company Subsidiary to, directly or indirectly, (i) solicit, initiate, knowingly encourage or take any other action to knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, (ii) enter into any agreement, letter of intent, memorandum of understanding or other similar instrument with respect to any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03) or (iii) enter into, continue, conduct, engage or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or for the purpose of encouraging or facilitating, any Company Takeover Proposal. The Company shall, shall cause the Company Subsidiaries, Subsidiaries and shall direct its instruct their respective Representatives to, immediately promptly cease and cause to be terminated all any existing solicitation of, or discussions and or negotiations with with, any Person conducted theretofore with respect (other than Parent and its Representatives) relating to any Company Takeover Acquisition Proposal and request that any such Person promptly return and/or destroy all confidential information concerning the Company and the Company’s Subsidiaries to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, made prior to obtaining Company Stockholder Approval, the Company and its Representatives may, in response to each (if any) Company Takeover Proposal made after the date hereof that does not result from and any access any such Persons may have to any physical or electronic data room relating to any potential Company Acquisition Proposal.
(d) Any violation of the restrictions contained in this Section 4.2 by any of the Company Subsidiaries or by any director or officer of the Company or any of the Company Subsidiaries shall be deemed to be a material breach of this Section 5.03, (y) contact 4.2 by the Person making such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if the Company Board determines in good faith, after consultation with outside legal counsel and independent financial advisors, that such Company Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Company Proposal, (1) provide access to or furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement; provided, that the Company will prior to or concurrently with the time such information is provided to such Person provide Parent with all non-public information regarding the Company that has not previously been provided to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and its Representatives making such Company Takeover ProposalCompany.
Appears in 2 contracts
Samples: Merger Agreement (Superior Drilling Products, Inc.), Merger Agreement (Drilling Tools International Corp)
Company No Solicitation. (a) Except The Company will not, and the Company will cause each of its Subsidiaries and its and their respective Representatives not to, except as expressly permitted by this Section 5.03, from the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it authorize 4.2 or permit any Company Subsidiary to, nor shall it authorize any Representatives of the Company or any Company Subsidiary toSection 4.5, directly or indirectly, :
(i) solicit, initiate, knowingly encourage or take any other action to knowingly facilitate any inquiryinquiries regarding, discussionor the submission or announcement by any Person (other than Parent or its Subsidiaries) of, any proposal or offer or request that constitutes, or could would reasonably be expected to lead to, a any Company Takeover Acquisition Proposal, ;
(ii) furnish any information regarding the Company or any Subsidiary of the Company (other than to Parent and its Subsidiaries), or afford access to the Company’s or its Subsidiaries’ Representatives, books, records or property, in each case, in connection with, or for the purpose of soliciting, initiating, encouraging or facilitating, or in response to, any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Company Acquisition Proposal;
(iii) engage in, enter into into, continue or otherwise participate in any agreementdiscussions or negotiations with any Person (other than Parent or its Representatives) with respect to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Company Acquisition Proposal;
(iv) approve, adopt, recommend, agree to or enter into, or propose to approve, adopt, recommend, agree to or enter into, any letter of intent, memorandum of understanding or other similar instrument document, agreement, commitment, or agreement in principle with respect to any Company Takeover Proposal Acquisition Proposal; or
(other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03v) resolve or (iii) enter intoagree to do any of the foregoing; provided, continuehowever, conductthat, engage or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or for the purpose of encouraging or facilitating, any Company Takeover Proposal. The Company shall, shall cause the Company Subsidiaries, and shall direct its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted theretofore with respect to any Company Takeover Proposal and request that any such Person promptly return and/or destroy all confidential information concerning the Company and the Company’s Subsidiaries notwithstanding anything to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything contrary contained in this Agreement to the contraryAgreement, prior to obtaining the Required Company Stockholder ApprovalVote, the Company and its Representatives maymay engage or otherwise participate in discussions or negotiations with, in response to each and provide information to, any Person (if anyor its Representatives) that has made a bona fide written Company Takeover Acquisition Proposal made after the date hereof that does did not result from a material any breach of this Section 5.034.2(a) or Section 4.2(c) by the Company, any of its Subsidiaries or any of its or their respective Representatives if: (yA) contact the Person making prior to taking any such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if action, the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent its financial advisorsadvisor, that such Company Takeover Acquisition Proposal either constitutes a Company Superior Proposal or could would reasonably be expected to lead to a Company Superior Proposal and that failure to engage in such discussions or negotiations, or provide such information, would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties to the Company and its stockholders under applicable Legal Requirements; and (B) prior to providing any information regarding the Company or any Subsidiary of the Company to such third party in response to such Company Acquisition Proposal, the Company receives from such third party (1or there is then in effect with such party) provide access an executed confidentiality agreement that contains nondisclosure provisions that are at least as restrictive of such third party as the Non-Disclosure Agreement and that does not prohibit compliance by the Company with this Section 4.2. Prior to or furnish substantially concurrently with providing any non-public information to such third party, the Company shall make such non-public information available to Parent (to the extent such non-public information has not been previously made available by the Company to Parent). The Company shall promptly (and in any event within 24 hours) inform Parent if the Company furnishes non-public information and/or enters into discussions or negotiations as provided for in this Section 4.2(a) and will keep Parent reasonably informed in writing, on a current basis (and, in any event, within 24 hours), of the status and terms of any Company Acquisition Proposal (including any material changes to the terms thereof) and the status of any discussions and negotiations with respect thereto.
(b) If the Company receives a Company Acquisition Proposal or any inquiry or request for information with respect to a Company Acquisition Proposal or that is reasonably likely to lead to a Company Acquisition Proposal, then the Company shall promptly (and in no event later than 24 hours after its receipt of such Company Acquisition Proposal or request) notify Parent in writing of such Company Acquisition Proposal or request (which notification shall include the identity of the Person making or submitting such request or Company Acquisition Proposal and an unredacted copy of any such written request or proposal (or, if not in writing, the material terms and conditions thereof)), together with copies of any proposed transaction agreements, and the Company Subsidiaries shall thereafter keep Parent reasonably informed in writing, on a current basis (and, in any event, within 24 hours), of the status of such Company Acquisition Proposal or request, including informing Parent of any material change to the Person making terms of such Company Takeover Proposal Acquisition Proposal, and the status of any negotiations, including any change in its intentions as previously notified.
(c) Promptly following the execution and delivery of this Agreement, the Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives pursuant to, immediately cease and cause to an Acceptable Confidentiality Agreement; providedbe terminated any existing solicitation of, that the Company will prior to or concurrently with the time such information is provided to such Person provide Parent with all non-public information regarding the Company that has not previously been provided to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such with, any Person (other than Parent and its Representatives) relating to any Company Acquisition Proposal made prior to the date hereof and any access any such Persons may have to any physical or electronic data room relating to any potential Company Acquisition Proposal. The Company shall not, and shall cause its Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which the Company or any of its Affiliates is a party.
(d) Any violation of the restrictions contained in this Section 4.2 by any of the Company’s Subsidiaries or any Representatives making such of the Company Takeover Proposalor any of its Subsidiaries shall be deemed to be a breach of this Section 4.2 by the Company.
Appears in 2 contracts
Samples: Merger Agreement (Advanced Micro Devices Inc), Merger Agreement (Xilinx Inc)
Company No Solicitation. (a) Except The Company will not and the Company will cause each of its Subsidiaries not to and will not authorize or permit and shall not otherwise direct its and their respective Representatives to, except as expressly permitted by this Section 5.03, from the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it authorize 4.2 or permit any Company Subsidiary to, nor shall it authorize any Representatives of the Company or any Company Subsidiary toSection 4.4, directly or indirectly, :
(i) solicit, initiateinitiate or knowingly encourage, knowingly encourage induce, assist or take any other action to knowingly facilitate any inquiryinquiries regarding, discussionor the submission or announcement by any Person (other than Parent or its Subsidiaries) of, any proposal or offer or request that constitutes, or could would reasonably be expected to lead to, a any Company Takeover Acquisition Proposal, ;
(ii) furnish any non-public information regarding the Company or any Subsidiary of the Company (other than to Parent and its Subsidiaries), or afford access to the Company’s or its Subsidiaries’ Representatives, books, records or property, in each case, in connection with, or for the purpose of soliciting, initiating, knowingly encouraging or knowingly facilitating, or in response to, any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to a Company Acquisition Proposal;
(iii) engage in, enter into into, continue or otherwise participate in any agreementdiscussions or negotiations with any Person (other than Parent or its Representatives) with respect to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Company Acquisition Proposal;
(iv) approve, adopt, recommend, agree to or enter into, or propose to approve, adopt, recommend, agree to or enter into, any letter of intent, memorandum of understanding or other similar instrument document, agreement, commitment, or agreement in principle with respect to any Company Takeover Proposal Acquisition Proposal; or
(other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03v) resolve or (iii) enter intoagree to do any of the foregoing; provided, continuehowever, conductthat, engage or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or for the purpose of encouraging or facilitating, any Company Takeover Proposal. The Company shall, shall cause the Company Subsidiaries, and shall direct its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted theretofore with respect to any Company Takeover Proposal and request that any such Person promptly return and/or destroy all confidential information concerning the Company and the Company’s Subsidiaries notwithstanding anything to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything contrary contained in this Agreement to the contraryAgreement, prior to obtaining the Required Company Stockholder ApprovalVote, the Company and its Representatives may, in response to each may (if any) Company Takeover Proposal made after the date hereof that does not result from a material breach of this Section 5.03, (yI) contact the Person making or any of its Representatives who has made such Company Takeover Acquisition Proposal solely to clarify the terms and conditions thereof of such Company Acquisition Proposal so that the Company Board may reasonably inform itself about such Company Acquisition Proposal and (zII) engage or otherwise participate in discussions or negotiations with, and provide information to, any Person (or its Representatives) that has made a bona fide written Company Acquisition Proposal after the date hereof that did not result from any breach of this Section 4.2(a) or Section 4.2(c) by the Company, any of its Subsidiaries or any of its or their respective Representatives if (A) prior to taking any such action, the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent its financial advisorsadvisor, that such Company Takeover Acquisition Proposal either constitutes a Company Superior Proposal or could would reasonably be expected to lead to a Company Superior Proposal and that failure to engage in such discussions or negotiations, or provide such information, would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Legal Requirements; and (B) prior to providing any information regarding the Company or any Subsidiary of the Company to such third party in response to such Company Acquisition Proposal, the Company receives from such third party (1or there is then in effect with such party) provide access an executed confidentiality agreement that contains nondisclosure provisions that are at least as restrictive of such third party as those contained in the Non-Disclosure Agreement are to Parent and that does not prohibit compliance by the Company with this Section 4.2 (it being understood that such confidentiality agreement need not contain any standstill provisions). Prior to or furnish substantially concurrently with providing any non-public information to such third party, the Company shall make such non-public information available to Parent (to the extent such non-public information has not been previously made available by the Company to Parent). The Company shall promptly (and in any event within twenty-four (24) hours) inform Parent if the Company furnishes non-public information and/or enters into discussions or negotiations as provided for in this Section 4.2(a) and will keep Parent reasonably informed in writing, on a current basis (and, in any event, within twenty-four (24) hours), of the status and all material terms of any Company Acquisition Proposal (including any material changes to the terms thereof) and the status of any discussions and negotiations with respect thereto.
(b) If the Company receives a Company Acquisition Proposal (or notice from any Person that it intends to make a Company Acquisition Proposal) or any inquiry or request for information with respect to a Company Acquisition Proposal or that is reasonably likely to lead to a Company Acquisition Proposal, then the Company shall promptly (and in no event later than twenty-four (24) hours after its receipt of such Company Acquisition Proposal or request) notify Parent in writing of such Company Acquisition Proposal or request (which notification shall include the identity of the Person making or submitting such request or Company Acquisition Proposal and an unredacted copy of any such written request or proposal (or, if not in writing, the material terms and conditions thereof)), together with copies of any proposed transaction agreements, and the Company Subsidiaries shall thereafter keep Parent reasonably informed in writing, on a current basis (and, in any event, within twenty-four (24) hours), of the status of such Company Acquisition Proposal or request, including informing Parent of any material change to the Person making terms of such Company Takeover Proposal Acquisition Proposal, and the status of any negotiations, including any change in its intentions as previously notified.
(c) Promptly following the execution and delivery of this Agreement, the Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives pursuant to, immediately cease and cause to an Acceptable Confidentiality Agreement; providedbe terminated any existing solicitation of, or discussions or negotiations with, any Person (other than Parent and its Representatives) relating to any Company Acquisition Proposal made prior to the date hereof and any access any such Persons may have to any physical or electronic data room relating to any potential Company Acquisition Proposal. The Company shall not, and shall cause its Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which the Company or any of its Affiliates is a party (unless, and only to the extent, the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and its financial advisor, that the Company will prior failure to or concurrently do so would reasonably be expected to be inconsistent with the time Company Board’s fiduciary duties under applicable Legal Requirements, in which case it may enable such information is provided Persons to such Person provide Parent with all non-public information regarding submit and pursue a Company Acquisition Proposal).
(d) Any violation of the restrictions contained in this Section 4.2 by any of the Company’s Subsidiaries or the Representatives of the Company that has not previously been provided at the direction of the Company shall be deemed to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and its Representatives making such Company Takeover Proposalbe a breach of this Section 4.2 by the Company.
Appears in 2 contracts
Samples: Merger Agreement (Metromile, Inc.), Merger Agreement (Lemonade, Inc.)
Company No Solicitation. (a) Except as permitted by this Section 5.03, from the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize any Representatives of the Company or any Company Subsidiary to, not directly or indirectly, shall ensure that the other Acquired Companies do not, and use reasonable best efforts to ensure that the Company’s and the other Acquired Companies’ respective Representatives do not directly or indirectly: (i) solicit, initiate, knowingly encourage encourage, assist, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry (including by approving any transaction, or approving any Person (other than Parent and its Affiliates) becoming an “interested stockholder” for purposes of Section 203 of the DGCL) or take any other action to knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably would be expected to lead to, a Company Takeover Proposal, to an Acquisition Proposal or Acquisition Inquiry; (ii) furnish or otherwise provide access to any non-public information regarding any of the Acquired Companies to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) enter into, continue or otherwise engage in discussions or negotiations with, or cooperate with, any Person with respect to any Acquisition Proposal or Acquisition Inquiry (other than to state the terms of this provision prohibit such discussions); (iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into any agreement, letter of intent, memorandum of understanding understanding, agreement in principle or other similar instrument document or any Contract constituting or relating directly or indirectly to, or that contemplates or is intended or reasonably would be expected to result directly or indirectly in, an Acquisition Transaction.
(b) Notwithstanding anything to the contrary contained in Section 4.4(a) prior to the adoption of this Agreement by the Required Company Stockholder Vote, the Company may furnish non-public information regarding the Acquired Companies to, may enter into discussions or negotiations with respect and may make contact in order to ascertain facts or clarify terms with, any Person in response to an unsolicited, bona fide, written Acquisition Proposal that is submitted to the Company Takeover Proposal after the date of this Agreement by such Person (other than an Acceptable Confidentiality Agreement entered into and not withdrawn), in accordance with each case if: (i) none of the Acquired Companies or any of their respective Representatives shall have breached any of the provisions set forth in this Section 5.034.4 or in Section 5.2 in relation to such Acquisition Proposal or Acquisition Inquiry; (ii) the Company’s board of directors determines in good faith, after having taken into account the advice of an independent financial advisor and the Company’s outside legal counsel, that such Acquisition Proposal constitutes or reasonably could be expected to result in a Company Superior Offer; (iii) enter intothe Company’s board of directors determines in good faith, continueafter having taken into account the advice of the Company’s outside legal counsel, conductthat the failure to take such action could reasonably be expected to be inconsistent with Applicable Law; (iv) prior to furnishing any such non-public information to, engage or otherwise participate in any entering into discussions or negotiations regardingwith, such Person, the Company receives from such Person an executed confidentiality agreement containing confidentiality and use provisions consistent with the obligations of the Company under this Agreement and no less favorable in the aggregate to the Company than such provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement; and (v) prior to, or furnish to any Person concurrently with, furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent (to the extent such non-public information has not been furnished previously by the Company to Parent).
(c) If the Company, any other Acquired Company or any Representative of the Company or any other Acquired Company receives an Acquisition Proposal, an Acquisition Inquiry or any request for non-public information at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than twenty-four (24) hours after receipt of such Acquisition Proposal, Acquisition Inquiry or request): (i) advise Parent in writing of such Acquisition Proposal, Acquisition Inquiry or request (including the identity of the Person making or submitting such Acquisition Proposal, Acquisition Inquiry or request and the material terms and conditions thereof); and (ii) provide Parent with copies of all documents and communications received by any Acquired Company or any Representative of any Acquired Company setting forth the terms and conditions of, or otherwise relating to, such Acquisition Proposal, Acquisition Inquiry or request. The Company shall keep Parent reasonably informed with respect to the status of any such Acquisition Proposal, Acquisition Inquiry or request and any modification or proposed modification thereto, and shall promptly (and in no event later than twenty-four (24) hours after transmittal or receipt of any correspondence or communication) provide Parent with a copy of any correspondence or communication between or otherwise involving (1) any Acquired Company or any Representative of any Acquired Company and (2) the Person that made or submitted such Acquisition Proposal, Acquisition Inquiry or request or any Representative of such Person. For the avoidance of doubt, the Company may not furnish non-public information regarding the Acquired Companies to, and may not enter into discussions or for the purpose of encouraging or facilitatingnegotiations with, any Person (other than Parent and its Representatives) regarding any Acquisition Proposal, Acquisition Inquiry or request after the adoption of this Agreement by the Required Company Takeover Proposal. Stockholder Vote.
(d) The Company shall, shall cause the Company Subsidiaries, and shall direct ensure that each of the other Acquired Companies and shall use reasonable best efforts to cause its Representatives toand their respective Representatives, immediately cease and cause to be terminated all any existing solicitation, encouragement, inducement or facilitation of, or discussions and or negotiations with with, any Person conducted theretofore with respect relating to any Acquisition Proposal or Acquisition Inquiry.
(e) Promptly after the date of this Agreement and in any event within two (2) Business Days, the Company Takeover shall (i) request, and use commercially reasonable efforts to cause, each Person that has executed a confidentiality or similar agreement in connection with such Person’s consideration of a possible Acquisition Proposal and request that or investment in any such Person promptly Acquired Company to return and/or or destroy all confidential information concerning the Company and the Company’s Subsidiaries to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, prior to obtaining Company Stockholder Approval, the Company and its Representatives may, in response to each (if any) Company Takeover Proposal made after the date hereof that does not result from a material breach of this Section 5.03, (y) contact the Person making such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if the Company Board determines in good faith, after consultation with outside legal counsel and independent financial advisors, that such Company Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Company Proposal, (1) provide access to or furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement; provided, that the Company will prior to or concurrently with the time such information is provided previously furnished to such Person provide Parent with all nonwithin twenty-public information regarding four (24) months prior to the date of this Agreement by or on behalf of any of the Acquired Companies or any Representative of an Acquired Company that has not previously been provided to Parent that is provided and (ii) prohibit any third party from having access to any Person making physical or electronic data room relating to any possible Acquisition Proposal or Acquisition Inquiry.
(f) The Company acknowledges and agrees that if it (i) authorizes any of its or the Acquired Companies’ Representatives to take any action or (ii) is made aware of an action by one or more of its or the Acquired Companies’ Representatives and does not use its reasonable best efforts to prohibit or terminate such Company Takeover Proposal; and (2) conductaction, engage or participate then in discussions or negotiations with either case, such Person and its Representatives making such Company Takeover Proposalaction would constitute a breach this Section 4.4.
Appears in 1 contract
Samples: Merger Agreement (CarLotz, Inc.)
Company No Solicitation. (a) Except as expressly permitted by this Section 5.035.4, from the Company shall, and shall cause each of its Subsidiaries to, and instruct its and their respective officers, directors, employees, agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively, “Representatives”) to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal (including any solicitation, knowing encouragement, discussions, or negotiations that may be ongoing as of the date hereof of this Agreement, including with II-VI Incorporated and MKS Instruments, Inc. and their respective Affiliates and any Representatives of the foregoing), and (ii) from and after the Original Agreement Date until the Effective Time, Time or, if earlier, the termination of this Agreement in accordance with its termsArticle VII, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize any Representatives of the Company or any Company Subsidiary to, directly or indirectly, (iA) solicit, initiate, initiate or knowingly facilitate or knowingly encourage any inquiries regarding, or take the making of any other action to knowingly facilitate any inquiry, discussion, proposal or offer or request that constitutes, or could would reasonably be expected to lead to, a Company Takeover Proposal, (iiB) enter into any agreementengage in, letter of intent, memorandum of understanding or other similar instrument with respect to any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03) or (iii) enter into, continue, conduct, engage continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any Person other person any non-public information in connection with respect to, or for the purpose of encouraging or facilitating, any a Company Takeover Proposal. The Proposal or (C) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle providing for a Company shallTakeover Proposal (including, shall cause the Company Subsidiariesin each case of clauses (A), (B), and shall direct its Representatives to(C), immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted theretofore from, with, or otherwise with respect to II-VI Incorporated and MKS Instruments, Inc. and their respective Affiliates or any Company Takeover Proposal and request that any such Person promptly return and/or destroy all confidential information concerning Representatives of the Company and the Company’s Subsidiaries to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything in foregoing).
(b) Except as expressly provided by this Agreement to the contrary, prior to obtaining Company Stockholder ApprovalAgreement, the Company and its Representatives may, shall not take any action to exempt any person from the restrictions on “business combinations” contained in response DGCL 203 or the Company Organizational Documents or otherwise cause such restrictions not to each apply. Except (if anyi) as necessary to take any actions that the Company Takeover Proposal made after the date hereof that does not result from a material breach of or any third party would otherwise be permitted to take pursuant to this Section 5.03, 5.4 (y) contact the Person making and in such Company Takeover Proposal solely to clarify case only in accordance with the terms and conditions thereof and hereof) or (zii) if the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel counsel, that any such action or forbearance would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (A) the Company and independent its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under any (1) standstill provision in any agreement to which the Company or any of its Subsidiaries is a party or (2) confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party (excluding any waiver under a confidentiality provision that does not, and would not reasonably be likely to, facilitate or encourage a Company Takeover Proposal) and (B) the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement.
(c) Notwithstanding anything to the contrary contained in this Section 5.4, if at any time from and after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company, directly or indirectly receives a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a material breach (or a deemed material breach) of this Section 5.4 (including, for the avoidance of doubt, a material breach (or deemed material breach) of Section 5.4 of the Original Agreement) and if the Company Board determines in good faith, after consultation with its outside financial advisorsadvisors and outside legal counsel, that such Company Takeover Proposal constitutes or could would reasonably be expected to lead to a Company Superior Company Proposal, and failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, directly or indirectly, (1i) provide access furnish, pursuant to or furnish a Company Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of the Company Subsidiaries and its Subsidiaries, to the Person making person that has made such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreementand potential sources of funding; provided, provided that the Company will prior to or shall substantially concurrently with the time such information is provided delivery to such Person person provide to Parent with all any non-public information regarding concerning the Company that has not previously been provided to Parent or any of its Subsidiaries that is provided or made available to any Person making such Company Takeover Proposal; person or its Representatives unless such non-public information has been previously provided or made available to Parent and (2ii) conduct, engage in or otherwise participate in discussions or negotiations with such Person and its Representatives the person making such Company Takeover Proposal (including as a part thereof, making counterproposals) and its Representatives and potential sources of financing regarding such Company Takeover Proposal. “Company Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those applicable to Parent that are contained in the Confidentiality Agreement; provided that such confidentiality agreement shall not prohibit compliance by the Company with any of the provisions of this Section 5.4. Notwithstanding anything to the contrary in this Agreement, (A) the Company may grant a waiver, amendment or release under any confidentiality agreement, standstill agreement or similar agreement to the extent necessary to allow a Company Takeover Proposal to be made to the Company or the Company Board (or any committee thereof), and (B) the Parties agree that, by execution of this Agreement, the Company shall be deemed to have waived, as of immediately prior to the execution and delivery of this Agreement, any provision in any such agreement to the extent necessary to allow the applicable counterparty to convey a Company Takeover Proposal to the Company or the Company Board (or any committee thereof).
Appears in 1 contract
Company No Solicitation. (a) Except as permitted by this Section 5.03, from From and after the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its termsAgreement, the Company shall not, nor and shall it authorize or permit any Company Subsidiary cause each of its Subsidiaries not to, nor and shall it authorize any direct its Representatives of the Company or any Company Subsidiary not to, directly or indirectly, :
(i) solicit, initiate, knowingly encourage or take any other action to knowingly facilitate or cooperate with any inquiryinquiries regarding, discussionor the submission or announcement by any Person (other than Parent or its Subsidiaries) of, any proposal or offer or request that constitutes, or could would reasonably be expected to lead to, a any Company Takeover Acquisition Proposal, ;
(ii) enter into furnish any agreement, letter of intent, memorandum of understanding or other similar instrument with respect information to any Company Takeover Proposal Person (other than an Acceptable Confidentiality Agreement entered into Parent or its Representatives) regarding the Company Group in accordance with this Section 5.03) connection with, for the purpose of soliciting, initiating, encouraging or facilitating, or in response to, a Company Acquisition Proposal;
(iii) enter into, continue, conduct, engage in or otherwise participate in any discussions or negotiations regardingwith any Person (other than Parent or its Representatives) with respect to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Company Acquisition Proposal; or
(iv) approve, adopt, endorse, recommend or enter into, or furnish propose to approve, adopt, endorse, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle with respect to any Person Company Acquisition Proposal.
(b) If the Company Group receives a Company Acquisition Proposal or any non-public inquiry or request for information with respect toto a Company Acquisition Proposal or that is reasonably likely to lead to a Company Acquisition Proposal, then the Company shall promptly (and in no event later than forty eight (48) hours after its receipt of such Company Acquisition Proposal or for request) notify Parent in writing of such Company Acquisition Proposal or request (which notification shall, unless expressly prohibited by a confidentiality agreement in effect as of the purpose date hereof, include the identity of encouraging the Person making or facilitatingsubmitting such request or Company Acquisition Proposal and a summary of the material terms and conditions thereof).
(c) Promptly following the execution and delivery of this Agreement, any Company Takeover Proposal. The the Company shall, and shall cause the Company Subsidiarieseach of its Affiliates and its and their respective directors, officers and employees, and shall direct instruct and use its commercially reasonable efforts to cause its other Representatives to, immediately cease and cause to be terminated all any existing solicitation of, or discussions and or negotiations with with, any Person conducted theretofore with respect (other than Parent and its Representatives) relating to any Company Takeover Acquisition Proposal made on or prior to the date hereof. The Company shall not, and request that shall cause its Affiliates not to, release any such Person promptly return and/or destroy all confidential information concerning third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which the Company and the Company’s Subsidiaries to the extent permitted pursuant to or any of its Affiliates is a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, prior to obtaining Company Stockholder Approval, the Company and its Representatives may, in response to each (if any) Company Takeover Proposal made after the date hereof that does not result from a material breach of this Section 5.03, (y) contact the Person making such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if the Company Board determines in good faith, after consultation with outside legal counsel and independent financial advisors, that such Company Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Company Proposal, (1) provide access to or furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement; provided, that the Company will prior to or concurrently with the time such information is provided to such Person provide Parent with all non-public information regarding the Company that has not previously been provided to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and its Representatives making such Company Takeover Proposalparty.
Appears in 1 contract
Samples: Business Combination Agreement (Ivanhoe Capital Acquisition Corp.)
Company No Solicitation. (a) Except The Company will not, and the Company will cause each of the Company Subsidiaries not to, and will instruct its and their respective Representatives not to, except as expressly permitted by this Section 5.03, from the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it authorize 4.2 or permit any Company Subsidiary to, nor shall it authorize any Representatives of the Company or any Company Subsidiary toSection 4.5, directly or indirectly, :
(i) solicit, initiate, knowingly encourage encourage, knowingly induce, knowingly assist or take any other action to knowingly facilitate any inquiryinquiries regarding, discussionor the submission or announcement by any Person (other than Parent or its Affiliates or their respective Representatives) of, any proposal or offer or request that constitutes, or could would reasonably be expected to lead to, any Company Acquisition Proposal (provided, however, that the Company and its Representatives may refer the Person making such proposal or offer to the provisions of this Section 4.2 and make inquiries of a Person making a Company Takeover Acquisition Proposal (and its Representatives) to solely clarify the terms of such Company Acquisition Proposal for the purpose of the Company Board informing itself about such Company Acquisition Proposal, );
(ii) furnish any information regarding the Company or any Company Subsidiary (other than to Parent and the Parent Subsidiaries), or afford access to the Company’s or the Company Subsidiaries’ Representatives, books, records or property, in each case, in connection with, or for the purpose of soliciting, initiating, encouraging or facilitating, or in response to, any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Company Acquisition Proposal;
(iii) engage in, enter into into, continue or otherwise participate in any agreementdiscussions or negotiations with any Person (other than Parent or its Representatives) with respect to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Company Acquisition Proposal (provided, however, that the Company and its Representatives may refer the Person making any such inquiry, proposal or offer to the provisions of this Section 4.2 and make inquiries of a Person making a Company Acquisition Proposal (and its Representatives) to solely clarify the terms of, such Company Acquisition Proposal for the purpose of the Company Board informing itself about such Company Acquisition Proposal);
(iv) approve, adopt, recommend, agree to or enter into, or publicly propose to approve, adopt, recommend, agree to or enter into, any letter of intent, memorandum of understanding or other similar instrument document, agreement, commitment, or agreement in principle with respect to any Company Takeover Proposal Acquisition Proposal; or
(other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03v) resolve or (iii) enter intoagree to do any of the foregoing; provided, continuehowever, conductthat, engage or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or for the purpose of encouraging or facilitating, any Company Takeover Proposal. The Company shall, shall cause the Company Subsidiaries, and shall direct its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted theretofore with respect to any Company Takeover Proposal and request that any such Person promptly return and/or destroy all confidential information concerning the Company and the Company’s Subsidiaries notwithstanding anything to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything contrary contained in this Agreement to the contraryAgreement, prior to obtaining the Required Company Stockholder ApprovalVote, the Company and its Representatives maymay engage or otherwise participate in discussions or negotiations with, in response to each and provide information to, any Person (if anyor its Representatives and financing sources and their Representatives) that has made a bona fide written Company Takeover Acquisition Proposal made after the date hereof that does did not result from a material any breach of this Section 5.034.2(a) or Section 4.2(c) by the Company, any of the Company Subsidiaries or any of its or their respective Representatives if: (yA) contact the Person making prior to taking any such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if action, the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent its financial advisorsadvisor, that such Company Takeover Acquisition Proposal either constitutes a Company Superior Proposal or could would reasonably be expected to lead to a Company Superior Proposal; and (B) prior to providing any information regarding the Company or any Subsidiary of the Company to such third party in response to such Company Acquisition Proposal, the Company receives from such third party (1or there is then in effect with such party) provide access an executed confidentiality agreement that contains nondisclosure provisions that are at least as restrictive of such third party as the Non-Disclosure Agreement and that does not prohibit compliance by the Company with this Section 4.2. Prior to or furnish substantially concurrently with providing any non-public information to such third party, the Company shall make such non-public information available to Parent (to the extent such non-public information has not been previously made available by the Company to Parent). The Company shall promptly (and in any event within 48 hours) inform Parent if the Company furnishes non-public information and/or enters into discussions or negotiations as provided for in this Section 4.2(a) and will keep Parent reasonably informed, on a current basis (and, in any event, within 48 hours), of the status and material terms of any Company Acquisition Proposal (including any material changes to the material terms thereof) and the status of any material discussions and negotiations with respect thereto.
(b) If the Company receives a Company Acquisition Proposal (or notice from any Person that it intends to make a Company Acquisition Proposal) or any inquiry or request for information with respect to a Company Acquisition Proposal or that is reasonably likely to lead to a Company Acquisition Proposal, then the Company shall promptly (and in no event later than 48 hours after its receipt of such Company Acquisition Proposal or request) notify Parent in writing of such Company Acquisition Proposal or request (which notification shall include the identity of the Person making or submitting such request or Company Acquisition Proposal and an unredacted copy of any such written request or proposal (or, if not in writing, the material terms and conditions thereof)), together with copies of any proposed transaction agreements, and the Company shall thereafter keep Parent reasonably informed, on a current basis (and, in any event, within 48 hours), of the status of such Company Acquisition Proposal, including informing Parent of any material change to the terms of such Company Acquisition Proposal, and the status of any negotiations, including any change in its intentions as previously notified.
(c) Promptly following the execution and delivery of this Agreement (and in any event within 24 hours after the execution and delivery of this Agreement), the Company shall, and shall cause each of the Company Subsidiaries and shall instruct their respective Representatives to, promptly cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person (other than Parent and its Representatives) relating to any Company Acquisition Proposal made prior to the date hereof and any access any such Persons may have to any physical or electronic data room relating to any potential Company Acquisition Proposal. The Company shall not, and shall cause its Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which the Company or any of its Affiliates is a party, unless the failure to take such action would reasonably be expected to be inconsistent with the Company’s Board’s fiduciary duties to the Company and its stockholders under applicable Legal Requirements.
(d) Any violation of the restrictions contained in this Section 4.2 by any of the Company Subsidiaries to the Person making such Company Takeover Proposal and its or any Representatives pursuant to an Acceptable Confidentiality Agreement; provided, that of the Company will prior to or concurrently with the time such information is provided to such Person provide Parent with all non-public information regarding any of the Company that has not previously been provided Subsidiaries shall be deemed to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and its Representatives making such Company Takeover Proposalbe a breach of this Section 4.2 by the Company.
Appears in 1 contract
Samples: Merger Agreement (Bioventus Inc.)
Company No Solicitation. (a) Except as permitted by this Section 5.03The Company (and after the Reorganization, from Newco) will not, and will cause each of the date hereof until other Group Companies and its and their respective directors, officers and employees, and shall instruct and use its reasonable best efforts to cause its other Representatives not to (and the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, Written Consent Party has acknowledged to the Company that it shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize any Representatives of the Company or any Company Subsidiary to), directly or indirectly, :
(i) solicit, initiate, knowingly encourage or take any other action to knowingly facilitate any inquiryinquiries regarding, discussionor the submission or announcement by any Person (other than Parent or its Subsidiaries) of, any proposal or offer or request that constitutes, or could would reasonably be expected to lead to, a any Company Takeover Acquisition Proposal, ;
(ii) enter into furnish any agreementinformation regarding any of the Group Companies in connection with, letter for the purpose of intentsoliciting, memorandum of understanding initiating, encouraging or other similar instrument with respect to any facilitating, or in response to, a Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03) or Acquisition Proposal;
(iii) enter into, continue, conduct, engage in or otherwise participate in any discussions or negotiations regardingwith any Person (other than Parent or its Representatives) with respect to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Company Acquisition Proposal; or
(iv) approve, adopt, recommend or enter into, or furnish propose to approve, adopt, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle with respect to any Person Company Acquisition Proposal.
(b) If the Company (and after the Reorganization, Newco) receives a Company Acquisition Proposal or any non-public inquiry or request for information with respect toto a Company Acquisition Proposal or that is reasonably likely to lead to a Company Acquisition Proposal, or for the purpose of encouraging or facilitating, any Company Takeover Proposal. The Company shall, shall cause then the Company Subsidiaries(or after the Reorganization, Newco) shall promptly (and in no event later than forty eight (48) hours after its receipt of such Company Acquisition Proposal or request) notify Parent in writing of such Company Acquisition Proposal or request (which notification shall include the identity of the Person making or submitting such request or Company Acquisition Proposal and a copy of any such written request or proposal (or, if not in writing, the material terms and conditions thereof)), and the Company (or after the Reorganization, Newco) shall thereafter keep Parent reasonably informed, on a current basis (and, in any event, within twenty four (24) hours), of the status of such Company Acquisition Proposal or request, including informing Parent of any material change to the terms of such Company Acquisition Proposal and any material change in such Person’s intentions as previously notified.
(c) Promptly following the execution and delivery of this Agreement, the Company (and after the Reorganization, Newco) shall, and shall direct cause each of its Affiliates and its and their respective directors, officers and employees, and shall instruct and use reasonable best efforts to cause its other Representatives toto (and the Written Consent Party has acknowledged to the Company that it shall), immediately cease and cause to be terminated all any existing solicitation of, or discussions and or negotiations with with, any Person conducted theretofore with respect (other than Parent and its Representatives) relating to any Company Takeover Acquisition Proposal made on or prior to the date hereof. The Company (and request that after the Reorganization, Newco) shall not, and shall cause its Affiliates not to, release any such Person promptly return and/or destroy all confidential information concerning third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which the Company and (or after the Reorganization, Newco) or any of its Affiliates is a party.
(d) Any violation of the restrictions contained in this Section 7.1 by any of the Company’s Subsidiaries to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, prior to obtaining Company Stockholder Approval, the Company and its Representatives may, in response to each (if any) Company Takeover Proposal made or after the date hereof that does not result from Reorganization, Newco’s) Representatives shall be deemed to be a material breach of this Section 5.03, (y) contact the Person making such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if 7.1 by the Company Board determines in good faith(and after the Reorganization, after consultation with outside legal counsel and independent financial advisors, that such Company Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Company Proposal, (1) provide access to or furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement; provided, that the Company will prior to or concurrently with the time such information is provided to such Person provide Parent with all non-public information regarding the Company that has not previously been provided to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and its Representatives making such Company Takeover ProposalNewco).
Appears in 1 contract
Company No Solicitation. (a) Except as expressly permitted by this Section 5.035.4, from the Company shall, and shall cause each of its Subsidiaries to, and instruct its and their respective officers, directors, employees, agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively, “Representatives”) to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal (including any solicitation, knowing encouragement, discussions, or negotiations that may be ongoing as of the date hereof of this Agreement, including with II-VI Incorporated and MKS Instruments, Inc. and their respective Affiliates and any Representatives of the foregoing), and (ii) from and after the Original Agreement Date until the Effective Time, Time or, if earlier, the termination of this Agreement in accordance with its termsArticle VII, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize any Representatives of the Company or any Company Subsidiary to, directly or indirectly, (iA) solicit, initiate, initiate or knowingly facilitate or knowingly encourage any inquiries regarding, or take the making of any other action to knowingly facilitate any inquiry, discussion, proposal or offer or request that constitutes, or could would reasonably be expected to lead to, a Company Takeover Proposal, (iiB) enter into any agreementengage in, letter of intent, memorandum of understanding or other similar instrument with respect to any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03) or (iii) enter into, continue, conduct, engage continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any Person other person any non-public information in connection with respect to, or for the purpose of encouraging or facilitating, any a Company Takeover Proposal. The Proposal or (C) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle providing for a Company shallTakeover Proposal (including, shall cause the Company Subsidiariesin each case of clauses (A), (B), and shall direct its Representatives to(C), immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted theretofore from, with, or otherwise with respect to II-VI Incorporated and MKS Instruments, Inc. and their respective Affiliates or any Company Takeover Proposal and request that any such Person promptly return and/or destroy all confidential information concerning Representatives of the Company and the Company’s Subsidiaries to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything in foregoing).
(b) Except as expressly provided by this Agreement to the contrary, prior to obtaining Company Stockholder ApprovalAgreement, the Company and its Representatives may, shall not take any action to exempt any person from the restrictions on “business combinations” contained in response DGCL 203 or the Company Organizational Documents or otherwise cause such restrictions not to each apply. Except (if anyi) as necessary to take any actions that the Company Takeover Proposal made after the date hereof that does not result from a material breach of or any third party would otherwise be permitted to take pursuant to this Section 5.03, 5.4 (y) contact the Person making and in such Company Takeover Proposal solely to clarify case only in accordance with the terms and conditions thereof and hereof) or (zii) if the Company Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel counsel, that any such action or forbearance would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (A) the Company and independent its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under any (1) standstill provision in any agreement to which the Company or any of its Subsidiaries is a party or (2) confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party (excluding any waiver under a confidentiality provision that does not, and would not reasonably be likely to, facilitate or encourage a Company Takeover Proposal) and (B) the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement.
(c) Notwithstanding anything to the contrary contained in this Section 5.4, if at any time from and after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company, directly or indirectly receives a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a material breach (or a deemed material breach) of this Section 5.4 (including, for the avoidance of doubt, a material breach (or deemed material breach) of Section 5.4 of the Original Agreement) and if the Company Board determines in good faith, after consultation with its outside financial advisorsadvisors and outside legal counsel, that such Company Takeover Proposal constitutes or could would reasonably be expected to lead to a Company Superior Company Proposal, (1) provide access and failure to or furnish information take such action would reasonably be expected to be inconsistent with respect to its fiduciary duties under applicable Law, then the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives may, directly or indirectly, (i) furnish, pursuant to an a Company Acceptable Confidentiality Agreement; provided, that the Company will prior to or concurrently with the time such information is provided to such Person provide Parent with all non-public information regarding the Company that has not previously been provided to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and its Representatives making such Company Takeover Proposal.information
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lumentum Holdings Inc.)
Company No Solicitation. (a) Except as permitted by this Section 5.03, from the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the The Company shall not, nor and shall it authorize or permit any Company Subsidiary cause each of its Subsidiaries, directors, officers and employees not to, nor and shall it authorize any instruct and use its commercially reasonable efforts to cause its other Representatives of the Company or any Company Subsidiary not to, directly or indirectly, :
(i) solicit, initiate, knowingly encourage or take any other action to knowingly facilitate or cooperate with any inquiryinquiries regarding, discussionor the submission or announcement by any Person (other than Parent or its Subsidiaries) of, any proposal or offer or request that constitutes, or could would reasonably be expected to lead to, a any Company Takeover Acquisition Proposal, ;
(ii) enter into furnish any agreementinformation regarding the Company Group in connection with, letter for the purpose of intentsoliciting, memorandum of understanding initiating, encouraging or other similar instrument with respect to any facilitating, or in response to, a Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03) or Acquisition Proposal;
(iii) enter into, continue, conduct, engage in or otherwise participate in any discussions or negotiations regardingwith any Person (other than Parent or its Representatives) with respect to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Company Acquisition Proposal; or
(iv) approve, adopt, endorse, recommend or enter into, or furnish propose to approve, adopt, endorse, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle with respect to any Person Company Acquisition Proposal.
(b) If the Company Group receives a Company Acquisition Proposal or any non-public inquiry or request for information with respect toto a Company Acquisition Proposal or that is reasonably likely to lead to a Company Acquisition Proposal, then the Company shall promptly (and in no event later than forty eight (48) hours after its receipt of such Company Acquisition Proposal or for request) notify Parent in writing of such Company Acquisition Proposal or request (which notification shall, unless expressly prohibited by a confidentiality agreement in effect as of the purpose date hereof, include the identity of encouraging the Person making or facilitatingsubmitting such request or Company Acquisition Proposal and a copy of any such written request or proposal (or, any Company Takeover Proposal. The if not in writing, the material terms and conditions thereof)).
(c) Promptly following the execution and delivery of this Agreement, the Company shall, and shall cause the Company Subsidiarieseach of its Affiliates and its and their respective directors, officers and employees, and shall direct instruct and use its commercially reasonable efforts to cause its other Representatives toto (and the Written Consent Parties have acknowledged to the Company that it shall), immediately cease and cause to be terminated all any existing solicitation of, or discussions and or negotiations with with, any Person conducted theretofore with respect (other than Parent and its Representatives) relating to any Company Takeover Acquisition Proposal made on or prior to the date hereof. The Company shall not, and request that shall cause its Affiliates not to, release any such Person promptly return and/or destroy all confidential information concerning third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which the Company and or any of its Affiliates is a party.
(d) Any violation of the restrictions contained in this Section 7.1 by any of the Company’s Subsidiaries Representatives shall be deemed to the extent permitted pursuant to be a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, prior to obtaining Company Stockholder Approval, the Company and its Representatives may, in response to each (if any) Company Takeover Proposal made after the date hereof that does not result from a material breach of this Section 5.03, (y) contact 7.1 by the Person making such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if the Company Board determines in good faith, after consultation with outside legal counsel and independent financial advisors, that such Company Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Company Proposal, (1) provide access to or furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement; provided, that the Company will prior to or concurrently with the time such information is provided to such Person provide Parent with all non-public information regarding the Company that has not previously been provided to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and its Representatives making such Company Takeover ProposalCompany.
Appears in 1 contract
Company No Solicitation. (a) Except as permitted by this Section 5.03, from the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the The Company shall will not, nor shall it authorize or permit any Company Subsidiary and will cause each of its Subsidiaries and its and their respective directors, officers and employees not to, nor and shall it authorize any instruct and use its reasonable best efforts to cause the Company’s and its Subsidiaries’ other respective Representatives of the Company or any Company Subsidiary not to, directly or indirectly, :
(i) solicit, initiate, assist, knowingly encourage or take facilitate or cooperate with any inquiries regarding, or the submission or announcement by any Person or “group” (as defined in the Exchange Act and the rules thereunder) (other action to knowingly facilitate than Parent or its Subsidiaries) of, any inquiry, discussion, proposal or offer or request that constitutes, or could would reasonably be expected to lead to, a any Company Takeover Proposal, Acquisition Proposal or Company Acquisition Transaction;
(ii) enter into furnish, or afford access to (including through any agreementvirtual data room), letter any information regarding the Company, any of intentits Subsidiaries, memorandum of understanding or other similar instrument with respect their respective businesses, operations, assets, liabilities, financial condition, books and records, prospects or employees to any Company Takeover Proposal Person or “group” (as defined in the Exchange Act and the rules thereunder) (other than an Acceptable Confidentiality Agreement entered into to Parent or any of its Affiliates or Representatives) in accordance with this Section 5.03) connection with, for the purpose of assisting, soliciting, initiating, encouraging or facilitating, or in response to, or that would reasonably be expected to lead to, any Company Acquisition Proposal or Company Acquisition Transaction;
(iii) enter into, continue, conduct, engage in or otherwise participate in any discussions or negotiations regarding, or furnish to with any Person any non-public information or “group” (as defined in the Exchange Act and the rules thereunder) (other than Parent or its Representatives) with respect to, any Company Acquisition Proposal or for the purpose any Company Acquisition Transaction, or any agreement, arrangement or understanding (including any letter of encouraging intent or facilitatingsimilar document, agreement, commitment, or agreement in principle with respect to any Company Acquisition Proposal or Company Acquisition Transaction), or any inquiry, proposal or offer that would reasonably be expected to lead to any Company Acquisition Proposal or Company Acquisition Transaction, or announce an intention to do so;
(iv) approve, adopt, endorse, recommend or enter into, or propose to approve, adopt, endorse, recommend or enter into, any letter of intent or similar document, agreement, commitment or agreement in principle with respect to any Company Takeover ProposalAcquisition Proposal or Company Acquisition Transaction; or
(v) release any third Person, or waive any provision of, any confidentiality agreement to which such Person is a party and which directly relates to a potential Company Acquisition Proposal or Company Acquisition Transaction.
(b) If the Company, any of its Subsidiaries or, to the Knowledge of the Company, any of their respective Representatives, receives a Company Acquisition Proposal or any inquiry, proposal or offer, request for information or request for discussions or negotiations, regarding or constituting a Company Acquisition Proposal or Company Acquisition Transaction or that is reasonably likely to lead to a Company Acquisition Proposal or Company Acquisition Transaction, then the Company shall promptly (and in no event later than forty eight (48) hours after receipt of such Company Acquisition Proposal or such inquiry, proposal, offer or request) notify Parent in writing of such Company Acquisition Proposal or such written inquiry, proposal, offer or request (which notification shall, unless expressly prohibited by a confidentiality agreement in effect as of the date hereof, include the identity of the Person making or submitting such Company Acquisition Proposal or such inquiry, proposal, offer or request and a copy of any such written Company Acquisition Proposal or such inquiry, proposal, offer or request (or, if not in writing, the material terms and conditions thereof)). The Company shallshall keep the Parent promptly informed of the status of any such Company Acquisition Proposals, shall cause inquiries, proposals, offers or requests.
(c) Promptly following the execution and delivery of this Agreement, the Company Subsidiariesshall, and shall direct cause each of its Subsidiaries and its and their respective Affiliates and its and their respective directors, officers and employees, and shall instruct and use reasonable best efforts to cause the Company’s and its Subsidiaries’ other respective Representatives toto (and the Written Consent Parties have acknowledged to the Company that they shall), immediately cease and cause to be terminated all any existing solicitation of, or discussions and or negotiations with with, any Person conducted theretofore with respect or “group” (as defined in the Exchange Act and the rules thereunder) (other than Parent or its Representatives) relating to any Company Takeover Acquisition Proposal or Company Acquisition Transaction made on, prior to or after the date hereof. The Company shall not, and request that shall cause its Subsidiaries and its and their respective Affiliates not to, release any such Person promptly return and/or destroy all confidential information concerning third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which the Company and Company, any of its Subsidiaries or any of their respective Affiliates is a party.
(d) Any violation of the restrictions contained in this Section 7.1 by any of the Company’s Subsidiaries or any of its Subsidiaries’ respective Representatives shall be deemed to the extent permitted pursuant to be a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, prior to obtaining Company Stockholder Approval, the Company and its Representatives may, in response to each (if any) Company Takeover Proposal made after the date hereof that does not result from a material breach of this Section 5.03, (y) contact 7.1 by the Person making such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if the Company Board determines in good faith, after consultation with outside legal counsel and independent financial advisors, that such Company Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Company Proposal, (1) provide access to or furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement; provided, that the Company will prior to or concurrently with the time such information is provided to such Person provide Parent with all non-public information regarding the Company that has not previously been provided to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and its Representatives making such Company Takeover ProposalCompany.
Appears in 1 contract
Samples: Merger Agreement (VPC Impact Acquisition Holdings III, Inc.)
Company No Solicitation. (a) Except as permitted by this Section 5.03, from the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the The Company shall will not, nor shall it authorize or permit any Company Subsidiary and will cause each of its directors, officers and employees not to, nor and shall it authorize any instruct and use its reasonable best efforts to cause its other Representatives of the Company or any Company Subsidiary not to, directly or indirectly, :
(i) solicit, initiate, knowingly encourage or take any other action to knowingly facilitate or cooperate with any inquiryinquiries regarding, discussionor the submission or announcement by any Person (other than Parent or its Subsidiaries) of, any proposal or offer or request that constitutes, or could would reasonably be expected to lead to, a any Company Takeover Acquisition Proposal, ;
(ii) enter into furnish any agreementinformation regarding the Company in connection with, letter for the purpose of intentsoliciting, memorandum of understanding initiating, encouraging or other similar instrument with respect to any facilitating, or in response to, a Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03) or Acquisition Proposal;
(iii) enter into, continue, conduct, engage in or otherwise participate in any discussions or negotiations regardingwith any Person (other than Parent or its Representatives) with respect to any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Company Acquisition Proposal; or
(iv) approve, adopt, endorse, recommend or enter into, or furnish propose to approve, adopt, endorse, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle with respect to any Person Company Acquisition Proposal.
(b) If the Company receives a Company Acquisition Proposal or any non-public inquiry or request for information with respect toto a Company Acquisition Proposal or that is reasonably likely to lead to a Company Acquisition Proposal, then the Company shall promptly (and in no event later than forty eight (48) hours after its receipt of such Company Acquisition Proposal or for request) notify Parent in writing of such Company Acquisition Proposal or request (which notification shall, unless expressly prohibited by a confidentiality agreement in effect as of the purpose date hereof, include the identity of encouraging the Person making or facilitatingsubmitting such request or Company Acquisition Proposal and a copy of any such written request or proposal (or, any Company Takeover Proposal. The if not in writing, the material terms and conditions thereof)).
(c) Promptly following the execution and delivery of this Agreement, the Company shall, and shall cause the Company Subsidiarieseach of its Affiliates and its and their respective directors, officers and employees, and shall direct instruct and use reasonable best efforts to cause its other Representatives toto (and the Written Consent Parties have acknowledged to the Company that it shall), immediately cease and cause to be terminated all any existing solicitation of, or discussions and or negotiations with with, any Person conducted theretofore with respect (other than Parent and its Representatives) relating to any Company Takeover Acquisition Proposal made on or prior to the date hereof. The Company shall not, and request that shall cause its Affiliates not to, release any such Person promptly return and/or destroy all confidential information concerning third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which the Company and or any of its Affiliates is a party.
(d) Any violation of the restrictions contained in this Section 7.1 by any of the Company’s Subsidiaries Representatives shall be deemed to the extent permitted pursuant to be a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, prior to obtaining Company Stockholder Approval, the Company and its Representatives may, in response to each (if any) Company Takeover Proposal made after the date hereof that does not result from a material breach of this Section 5.03, (y) contact 7.1 by the Person making such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if the Company Board determines in good faith, after consultation with outside legal counsel and independent financial advisors, that such Company Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Company Proposal, (1) provide access to or furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement; provided, that the Company will prior to or concurrently with the time such information is provided to such Person provide Parent with all non-public information regarding the Company that has not previously been provided to Parent that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and its Representatives making such Company Takeover ProposalCompany.
Appears in 1 contract
