Inquiries and Negotiations. (a) In connection with any Alternative Transaction (as hereinafter defined), from the date hereof until the termination of this Agreement, the Company, the Subsidiaries and their respective officers, directors, employees, representatives and other agents will not, directly or indirectly, solicit or initiate any discussions, submissions of proposals or offers or negotiations with, or continue any pre-existing discussions with, or participate in any negotiations or discussions with, or provide any information or data of any nature whatsoever to, or otherwise cooperate in any other way with, or assist or participate in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely in connection with a Superior Proposal (as hereinafter defined) or a proposal that is reasonably likely to lead to a Superior Proposal, then but only then may the Company take any of the foregoing actions. The Company shall promptly notify Parent if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, and shall, in any such notice to Parent, indicate the identity of the Third Party and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect than, those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directors. The Company shall not release any Third Party from, or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement to which the Company is a party, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directors. As of the date hereof, the Company shall cease, and shall use best efforts to cause the
Appears in 3 contracts
Samples: Merger Agreement (Policy Management Systems Corp), Merger Agreement (Computer Sciences Corp), Merger Agreement (Computer Sciences Corp)
Inquiries and Negotiations. (a) In connection with any Alternative Transaction (as hereinafter defined), from From the date hereof until the Effective Time or earlier termination of this Agreement, the Company, the Subsidiaries and their respective officers, directors, employees, representatives and other agents or otherwise will not, directly or indirectlyindirectly (i) solicit, solicit initiate or initiate knowingly encourage the submission of any discussionsAlternative Transaction, submissions of proposals or offers or negotiations withincluding any Superior Proposal, or continue any pre-existing discussions with, or (ii) participate in any discussions or negotiations or discussions withregarding, or provide furnish to any person, any non-public information or data of any nature whatsoever with respect to, or otherwise cooperate in any other way withwith respect to, or assist or participate in, in or facilitate or encourage any effort or attempt by, Alternative Transaction with any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding ) except that the foregoing, Company may take any action referred to in this clause (ii) if (A) the Board determines in good faith (after consultation with outside counsel) that such action is required by the fiduciary duties of the Board under applicable law, (B) the Board determines in good faith that the Alternative Transaction constitutes a Superior Proposal, and (C) the Company has given prior written notice to Parent and Acquisition and entered into a customary confidentiality agreement on terms no less favorable to the Company that those contained in the Confidentiality Agreement (provided that such confidentiality agreement need not contain terms which restrict the ability of the Third Party to make a proposal to the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely in connection with a Superior Proposal (as hereinafter defined) or a proposal that is reasonably likely to lead to a Superior Proposal, then but only then may the Company take any of the foregoing actionsDirectors). The Company shall promptly notify Parent orally and in writing if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, and shall, in any such notice to Parent, indicate the identity of the Third Party and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a reasonably current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect than, those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directors. The Company shall not release any Third Party from, or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement to which the Company is a partyagreement, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directors. As of the date hereof, the Company shall cease, and shall use best efforts cause the Subsidiaries and the officers, directors, employees, representatives and other agents of the Company and the Subsidiaries, to cause thecease, all discussions, negotiations and communications with all Third Parties and demand the immediate return of all confidential information previously provided to Third Parties.
(b) As used in this Agreement, the term "Alternative Transaction" shall mean any bona fide written proposal or offer from any Third Party relating to any (i) merger, consolidation, recapitalization, tender or exchange offer, debt restructuring or similar transaction involving the Company, (ii) sale of more than 20% of the common stock or other capital stock of the Company or (iii) sale of assets (including stock of Subsidiaries) representing more than 20% of the assets of the Company and its subsidiaries, taken as a whole, including a sale by any means specified in clause (i) of this sentence. As used in this Agreement, the term "Superior Proposal" shall mean any bona fide written proposal, not solicited, initiated or encouraged in violation of this Section 5.5, made by a Third Party to acquire, directly or indirectly, for consideration consisting of cash and/or securities, all of the equity securities of the Company entitled to vote generally in the election of directors or all or substantially all of the assets of the Company, if and only if, the Board reasonably determines (after consultation with its financial advisor and outside counsel)
Appears in 2 contracts
Samples: Merger Agreement (Harmon Industries Inc), Merger Agreement (Harmon Industries Inc)
Inquiries and Negotiations. (a) In connection with any Alternative Transaction (as hereinafter defined), from Notwithstanding anything to the date hereof until the termination of contrary set forth in this Agreement, prior to receipt from Purchaser of a copy of the CompanyCommitment Letter, Seller shall be entitled to (i) continue existing, and solicit and initiate new, activities, discussions and negotiations with any Person in respect of the Subsidiaries acquisition of all or any substantial part of the business and their respective properties of the Company and the Company Subsidiaries, whether by sale of assets or the Shares, or by merger, consolidation, recapitalization, liquidation or similar transaction (each, an "Acquisition Transaction") and (ii) accept an offer for an Acquisition Transaction and enter into a definitive agreement in respect thereof. Notwithstanding anything to the contrary set forth in this Agreement, prior to receipt from Purchaser of a copy of the Commitment Letter, (i) Seller, and Seller's officers, directors, employees, representatives and other agents will notagents, shall be permitted, directly or and indirectly, to (A) solicit or and initiate any discussions, submissions of proposals or offers or discussions and negotiations with, or continue any pre-existing discussions with, or participate in any negotiations or discussions with, or and provide any information or data of any nature whatsoever to, or otherwise cooperate in any other way with, or assist or participate in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely in connection with a Superior Proposal (as hereinafter defined) or a proposal that is reasonably likely to lead to a Superior Proposal, then but only then may the Company take any of the foregoing actions. The Company shall promptly notify Parent if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, and shall, in any such notice to Parent, indicate the identity of the Third Party and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, any Person concerning an Acquisition Transaction, and (B) otherwise solicit, initiate and encourage inquiries and the submission of any proposal contemplating an Acquisition Transaction and (ii) Seller shall be under no obligation to communicate to Purchaser the terms of any inquiry or entering into proposal that it may receive in respect of an Acquisition Transaction. The parties hereto hereby acknowledge that (i) at any time prior to Seller's receipt from Purchaser of a copy of the Commitment Letter, Seller shall be entitled to terminate this Agreement by paying to Purchaser Two Million Dollars as liquidated damages and (ii) upon the making of such liquidated damages payment, this Agreement shall be deemed automatically terminated, null and void and without further force or effect..
(b) Upon receipt from Purchaser of a copy of the Commitment Letter, Seller shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted theretofore in respect of any and all Acquisition Transactions. Following receipt from Purchaser of a copy of the Commitment Letter, Seller shall not, and shall not permit its officers, employees, representatives or agents to, directly or indirectly, (i) solicit or initiate discussions or negotiations with, or provide any Third Partynon-public information to, the Company shall obtain any Person other than Purchaser or its Affiliates concerning an executed confidentiality agreement from such Third Party on terms substantially the same asAcquisition Transaction, or no less (ii) otherwise solicit, initiate or encourage inquiries or the submission of any proposal contemplating an Acquisition Transaction. Following receipt from Purchaser of a copy of the Commitment Letter, Seller shall promptly communicate to Purchaser the terms of any inquiry or proposal that it may receive in respect of an Acquisition Transaction, or has received or solicited, directly or indirectly, after the date of such receipt. Seller's notification under this Section 6.14(b) shall include the identity of the Person making such proposal or any other such information with respect thereto as Purchaser may reasonably request. Nothing contained in this Agreement shall be construed to prohibit Seller, following receipt from Purchaser of a copy of the Commitment Letter, from (i) if advised in writing by counsel to be required by fiduciary obligations under applicable law, providing non-public information to, and participating in negotiations with, a Person who has made a bona fide offer to effect an Acquisition Transaction for a purchase price in excess of the Purchase Price and payment of all amounts required by Section 6.12 and (ii) accepting an offer for an Acquisition Transaction which the Board of Directors of Seller, on the advice in writing of its financial advisor, believes is more favorable to the Company in any material respect than, those contained in Seller than the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability transaction contemplated hereby. If an offer for an Acquisition Transaction is accepted pursuant to clause (ii) of the Third Party immediately preceding sentence, Seller shall immediately upon acceptance of such offer pay to make a proposal to the Company's Board of DirectorsPurchaser Four Million Dollars as liquidated damages. The Company parties hereto hereby acknowledge that, upon the making of such liquidated damages payment, this Agreement shall not release any Third Party frombe deemed automatically terminated, null and void and without further force or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement to which the Company is a party, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directorseffect. As of the date hereof, the Company shall cease, and shall use best efforts to cause theTHE PARTIES HEREBY ACKNOWLEDGE THAT THE EXTENT OF DAMAGES TO PURCHASER OCCASIONED BY THE FAILURE OF THIS TRANSACTION TO BE CONSUMMATED FOLLOWING DELIVERY OF A COPY OF THE COMMITMENT LETTER BY PURCHASER TO SELLER WOULD BE IMPOSSIBLE OR EXTREMELY DIFFICULT TO ASCERTAIN AND THAT FOUR MILLION DOLLARS IS A FAIR AND REASONABLE ESTIMATE OF SUCH DAMAGES UNDER THE CIRCUMSTANCES AND DOES NOT CONSTITUTE A PENALTY.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Resource America Inc), Stock Purchase Agreement (Fidelity Leasing Inc)
Inquiries and Negotiations. (a) In connection The Company shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Alternative Transaction (as hereinafter defined), from Person conducted heretofore in respect of the date hereof until acquisition of all or any substantial part of the termination business and properties of this Agreement, the Company, whether by sale of assets or shares of capital stock of the Subsidiaries Company, or by merger, consolidation, recapitalization, liquidation or similar transaction including the Company (each, an "Acquisition Transaction"). The Company shall not, and their respective shall not permit its officers, directors, employees, representatives and other representatives, or agents will notto, directly or indirectly, (i) solicit or initiate any discussions, submissions of proposals or offers discussions or negotiations with, or continue any pre-existing discussions with, or participate in any negotiations or discussions with, or provide any information or data of any nature whatsoever to, or otherwise cooperate in any other way with, or assist or participate in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely in connection with a Superior Proposal (as hereinafter defined) or a proposal that is reasonably likely to lead to a Superior Proposal, then but only then may the Company take any of the foregoing actions. The Company shall promptly notify Parent if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, and shall, in any such notice to Parent, indicate the identity of the Third Party and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, any person other than Buyer or entering into its affiliates concerning an Acquisition Transaction, or (ii) otherwise solicit, initiate or encourage inquiries or the submissions or any proposal contemplating an Acquisition Transaction. The Company shall promptly communicate to Buyer the terms of any inquiry or proposal which it may receive in respect of an Acquisition Transaction. The Company's notification under this Section 7.7 shall include the identity of the person making such proposal or any other such information with respect thereto as Buyer may reasonably request. Nothing contained in this Agreement shall be construed to prohibit the Company from (a), if advised in writing by counsel to be required by fiduciary obligations under applicable law, providing non-public information to, and participating in negotiations or discussions with, any Third Party, the Company shall obtain a Person who has made a bona fide offer to effect an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company Acquisition Transaction for an all cash purchase price in any material respect than, those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability excess of the Third Party to make a proposal Aggregate Merger Consideration and (b) accepting an offer for an Acquisition Transaction which the Board of Directors of the Company, on the advice in writing of its financial advisor, believes is more favorable to the Company's Board of Directors. The Company shall not release any Third Party fromstockholders than the Merger contemplated hereby; provided, or waive any provision ofhowever, any such confidentiality agreement or any other confidentiality or standstill agreement to which in the event that an offer for an Acquisition Transaction is accepted by the Company is a party, other than any such provision that would prevent or otherwise restrict the ability of a Third Party pursuant to make a proposal to the Company's Board of Directors. As of the date hereofthis Section, the Company provisions of Section 10.3 shall cease, and shall use best efforts to cause thebe applicable.
Appears in 1 contract
Inquiries and Negotiations. (a) In connection with The Company shall not, and shall not cause, authorize or permit any Alternative Transaction (as hereinafter defined)of its Subsidiaries to, from the date hereof until the termination of this Agreementnor shall it cause, authorize or permit any officer, director or employee of, or any investment banker, attorney, accountant or other advisor or representative of, the Company, the Company or any of its Subsidiaries and their respective officers, directors, employees, representatives and other agents will notto, directly or indirectly, solicit (i) solicit, initiate or initiate any discussions, submissions of proposals or offers or negotiations with, or continue any pre-existing discussions with, or participate in any negotiations or discussions with, or provide any information or data encourage the submission of any nature whatsoever to, or otherwise cooperate in any other way with, or assist or participate in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely in connection with a Superior Acquisition Proposal (as hereinafter defined) or a (ii) participate in any discussions or negotiations regarding, or furnish to any person any information in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, provided that during the period following the execution of this Agreement and prior to the consummation of the Offer, nothing contained in this Section 6.05
(a) shall prohibit the Board of the Directors of the Company from furnishing any information to, or entering into discussions or negotiations with, any person that makes after the date hereof an unsolicited bona fide Acquisition Proposal if, and only to the extent that, (A) the Board of Directors of the Company, after consultation with outside legal counsel, determines in good faith that it is probable that the failure to take such action would be a breach of its fiduciary duties under Pennsylvania law, (B) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is reasonably likely to lead to a transaction that would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point of view than the transactions contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"), then but only then may the Company take any of the foregoing actions. The Company shall promptly notify Parent if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced and (C) prior to the date hereof, are sought to be initiated or continued withtaking such action, the Company (x) provides reasonable notice to Parent to the effect that it is taking such action and (y) receives from the person submitting such Acquisition Proposal an executed confidentiality/standstill agreement in respect of an Alternative Transaction, reasonably customary form and shall, in any such notice to Parent, indicate the identity of the Third Party and the event containing terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement (with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect than, confidentiality) at least as stringent as those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to Agreement between Parent and the Company's Board of Directors. The Company shall not during the term of this Agreement release any Third Party third party from, or agree to amend or waive any provision of, any and the Company shall take all reasonable best efforts to enforce, to the fullest extent permitted by applicable law, each such confidentiality confidentiality/standstill agreement or and any other confidentiality or standstill agreement to which the Company is or becomes a party. The Company shall notify Parent of any Acquisition Proposal (including, other the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof. The Company will keep Parent informed of any material changes (including material amendments) to any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of DirectorsAcquisition Proposal. As of the date hereof, the The Company shall ceaseimmediately cease and terminate, and shall use best efforts to immediately cause theits Subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and
Appears in 1 contract
Samples: Merger Agreement (Misys PLC)
Inquiries and Negotiations. (a) In connection with any Alternative Transaction (as hereinafter defined), from Prior to the date hereof until earlier of the termination of this AgreementAgreement pursuant to Section 21 hereof or the Closing Date, neither the CompanyCompany nor any of its Subsidiaries, nor the Subsidiaries and Existing Investors, nor any of their respective officersaffiliates, directors, officers, employees, representatives and other agents will notrepresentatives, advisors or agents, shall, directly or indirectly, solicit solicit, respond to or initiate any discussions, submissions of proposals or offers or negotiations with, or continue any pre-existing discussions with, or participate in any negotiations or discussions with, or provide any information or data of any nature whatsoever to, or otherwise cooperate in any other way with, or assist or participate in, in facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent the Questor Investors and its affiliates, representatives and agents (eachagents, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties concerning any transaction or series of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely in connection transactions with a Superior Proposal third party of parties concerning any merger, consolidation, sale of substantial assets, sale or exchange of shares of capital stock or other equity securities or sale of debt securities (as hereinafter defined) or a proposal that is reasonably likely to lead to a Superior Proposal, then but only then may the Company take including without limitation any of the foregoing actionseffected by way of recapitalization, debt restructuring or other similar transaction), involving the Company or any Subsidiary, or any division of the Company or any of its Subsidiaries (such transactions being hereinafter referred to as "ALTERNATIVE TRANSACTIONS"). Upon execution of this Agreement, the Company and the Existing Investors shall immediately cease any existing discussions or negotiations with any parties relating to an Alternative Transaction. The Company or the Existing Investors, as the case may be, shall promptly immediately notify Parent the Questor Investors if any bona fide proposal, offer, inquiry offer or other contact is received by, any material information is requested from, or any discussions or negotiations, including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued with, the Company or the Existing Investors in respect of an Alternative Transaction, and shall, in any such notice to Parent, the Questor Investors indicate the identity of the Third Party offeror and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a current basis, the Questor Investors informed of all material developments affecting the status and terms of any such proposals or offers or and the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect than, those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directors. The Company shall not release any Third Party third party from, or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement to which the Company is a party, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directors. As of the date hereof, the Company shall cease, and shall use best efforts to cause the.
Appears in 1 contract
Samples: Purchase and Registration Rights Agreement (Aegis Communications Group Inc)
Inquiries and Negotiations. (a) In connection with any Alternative Transaction (as hereinafter defined), from From the date hereof -------------------------- until the termination of this Agreement, the Company, the Subsidiaries and their respective officers, directors, employees, representatives representa-tives and other agents will not, directly or indirectlyindi-rectly, solicit or initiate any discussions, submissions of proposals or offers or negotiations withwith or, or continue subject to the fiduciary duties of the Company's Board of Direc-tors as determined in good faith by the Board of Directors after consultation with counsel, take any preof the following actions: partici-existing discussions with, or participate pxxx in any negotiations or discussions discus-sions with, or provide any information or data of any nature whatsoever whatso-ever to, or otherwise cooperate in any other way with, or assist or participate partici-pxxx in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent Acquisition and its affiliatesaffili-ates, representatives representa-tives and agents (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely ) in connection with a Superior Proposal any Alternative Transaction (as hereinafter defined) or a proposal that is reasonably likely to lead to a Superior Proposal, then but only then may the Company take any of the foregoing actions). The Company shall promptly immediately notify Parent Acquisition if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions discus-sions or negotiations, including discussions or negotiations commenced prior to the date hereof, negotia-tions are sought to be initiated or continued with, the Company in respect of an Alternative TransactionTransac-tion, and shall, in any such notice to ParentAcquisition, indicate the identity of the Third Party and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent Acquisition informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent Acquisition with not less than then two business days' notice prior to the execution by the Company of any definitive defini-tive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect than, those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directors. The Company shall not release any Third Party from, or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement to which the Company is a party, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directors. As of the date hereof, the Company shall cease, and shall use best efforts to cause theAlternative
Appears in 1 contract
Inquiries and Negotiations. (a) In connection with any Alternative Transaction (as hereinafter defined), from From and after the date hereof until the termination of this AgreementAgreement and except as expressly permitted by the following provisions of this Section 5.5, the CompanyCompany will not, and will not permit any Company Subsidiary to, and will not authorize any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative of, the Subsidiaries Company or any Company Subsidiary to (and their respective officers, directors, employees, representatives and other agents will notinstruct such Persons not to), directly or indirectly, solicit (i) solicit, initiate or initiate encourage the submission of a proposal for any discussions, submissions of proposals Alternative Transaction (as hereinafter defined) or offers or negotiations with, or continue any pre-existing discussions with, or (ii) participate in any discussions or negotiations or discussions withregarding, or provide furnish to any information or data of any nature whatsoever to, or otherwise cooperate in any other way with, or assist or participate in, facilitate or encourage any effort or attempt by, any Person (which includes a "person, corporation, entity or "group" (as such term is defined in Section 13(d13(d)(3) of the Exchange Act) other than Parent and its affiliates, representatives and agents or Purchaser (each, a "Third Party"). Notwithstanding the foregoing) any information with respect to, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely in connection with a Superior Proposal (as hereinafter defined) or a proposal that is reasonably likely to lead to a Superior Proposal, then but only then may the Company take any of the foregoing actions. The Company shall promptly notify Parent if any proposal, offer, inquiry or other contact is received byaction knowingly to facilitate, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, and shallany inquiries, in any such notice to Parent, indicate access or the identity of the Third Party and the terms and conditions making of any proposals proposal that constitutes, or offers or the nature of any inquiries or contactsmay reasonably be expected to lead to, and thereafter shall keep Parent informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to ; provided, however, that nothing contained in this Section 5.5(a) shall prohibit the Company Board from furnishing any non-public information to, or entering into discussions or negotiations or discussions with, any Third PartyParty that makes an unsolicited bona fide written proposal of an Alternative Transaction if, and only to the extent that, (A) the Company Board, after consultation with outside legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties to the Stockholders under applicable law, (B) the Company Board determines in good faith, after consultation with a financial advisor of nationally recognized reputation, that such Alternative Transaction would, if consummated, constitute or be reasonably likely to constitute a Superior Proposal and (C) prior to taking such action, the Company shall obtain (x) provides reasonable notice to Parent to the effect that it is taking such action (including the material terms and conditions of the Alternative Proposal and the identity of the Person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, (y) provides Parent with a copy of any Alternative Transaction or amendments or supplements thereto and (z) receives from such Third Party an executed confidentiality agreement from such Third Party on in reasonably customary form and in any event containing terms substantially the same as, or no less at least as favorable to the Company in any material respect thanas those between Parent and the Company, those contained in the Confidentiality Agreement; provided that such confidentiality agreement need not contain a any "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directors. The Company shall not release any Third Party from, or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement to which the Company is a party, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directors. As of the date hereof, the Company shall cease, and shall use best efforts to cause theprovisions.
Appears in 1 contract
Inquiries and Negotiations. (a) In connection with any Alternative Transaction (as hereinafter defined), from From the date hereof until the termination of this Agreementhereof, the Company, the Subsidiaries and their respective officers, directors, employees, representatives and other agents will not, directly or indirectly, solicit or initiate any discussions, submissions of proposals or offers or negotiations withwith or, or continue any pre-existing discussions withsubject to the fiduciary duties of the Company's Board of Directors as advised by counsel, or participate in any negotiations or discussions with, or provide any information or data of any nature whatsoever to, or otherwise cooperate in any other way with, or assist or participate in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely ) in connection with a Superior Proposal (as hereinafter defined) any merger, consolidation, sale of any Subsidiary or a proposal division that is reasonably likely material to lead to a Superior Proposal, then but only then may the business of the Company take any and the Subsidiaries, sale of shares of capital stock or other equity securities, tender or exchange offer, recapitalization, debt restructuring or similar transaction involving the foregoing actionsCompany (such transactions being hereinafter referred to as "Alternative Transactions"). The Company shall promptly immediately notify Parent if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, and shall, in any such notice to Parent, indicate the identity of the Third Party and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or and the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect than, those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directors. The Company shall not release any Third Party from, or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement to which the Company is a party, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directors. As of the date hereof, except as contemplated above, the Company shall cease, and shall use best efforts cause the Subsidiaries and the officers, directors, employees, representatives and other agents of the Company and the Subsidiaries to cause thecease all discussions, negotiations and communications with all Third Parties and demand the immediate return of all confidential information previously provided to Third Parties.
(b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Parent, within two business days following such Payment Event, (i) a fee of $6,420,000 in cash, plus (ii) all reasonable and documented out-of-pocket costs and expenses of Parent and Acquisition, including, without limitation, fees and expenses of counsel, accountants, investment bankers and other advisors, filling fees and printing expenses. In the event that this Agreement shall be terminated for any other reason and the Company shall have failed to comply with or per form, or shall have breached, in any material respect, any of its covenants or agreements contained herein, the Company shall pay to Parent, within two business days following such termination, the fees and expenses referred to in clause (ii) of the preceding sentence; provided that the fees and expenses described in clauses (i) and (ii) above shall not be so payable if Parent or Acquisition shall have failed to comply with or perform, or shall have breached, in any material respect, any of its covenants or agreements contained herein.
(c) For purposes of this Agreement, the term "Payment Event" means any of (x) the termination of this Agreement by Parent pursuant to Section 8.01(d); (y) the Company's entering into a written agreement with respect to an Alternative Transaction or the commencement of a tender offer by a Third Party, as contemplated by Section 8.01(c); or (z) the occurrence of any of the following events within six months of the date of termination of this Agreement (unless this Agreement was terminated pursuant to Section 8.01(a) and the Company was not in breach in any material respect of any representation, warranty or covenant at the time of such termination) whereby stockholders of the Company receive, pursuant to such event, cash, securities or other consideration having an aggregate value, when taken together with the value of any securities of the Company or the Subsidiaries otherwise held by the stockholders of the Company after such event, in excess of $10.50 per share of Company Common Stock: (i) the Company is acquired by merger or otherwise by a Third Party; (ii) a Third Party acquires more than 50% of the total assets of the Company and the Subsidiaries, taken as a whole; (iii) a Third Party acquires more than 30% of the outstanding shares of Company Common Stock or (iv) the Company adopts and implements a plan of liquidation or share repurchase relating to more than 50% of such outstanding shares or an extraordinary dividend relating to more than 50% of the outstanding Shares or 50% of the assets of the Company and the Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Merger Agreement (International Telecommunication Data Systems Inc)
Inquiries and Negotiations. (a) In connection with any Alternative Transaction (as hereinafter defined), from From the date hereof until the Effective Time or earlier termination of this AgreementAgreement in accordance with its terms, the Company, Company will not and will instruct the Subsidiaries and their respective officers, directors, employees, representatives and other agents will not, or otherwise not to directly or indirectlyindirectly (i) solicit, solicit initiate or initiate knowingly encourage the submission of any discussionsAlternative Transaction (as hereinafter defined), submissions of proposals or offers or negotiations withincluding, without limitation, any Superior Proposal (as hereinafter defined), or continue any pre-existing discussions with, or (ii) participate in any discussions or negotiations or discussions withregarding, or provide furnish to any person any non-public information or data of any nature whatsoever with respect to, or otherwise cooperate in any other way withwith respect to, or assist or participate inin or facilitate, facilitate or encourage any effort or attempt by, Alternative Transaction with any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent Acquirer and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding , except that the foregoing, Company may take any action referred to in these clauses (i) or (ii) if (A) the Board determines in good faith (after consultation with outside counsel) that such action is required by the fiduciary duties of the Company's Board of Directors as determined under applicable law, (B) the Board determines in good faith by that the Board of Directors after consultation with counsel, and if solely in connection with a Superior Proposal (as hereinafter defined) or a proposal that is reasonably likely to lead to Alternative Transaction constitutes a Superior Proposal, then but only then may and (C) the Company take any of has given prior written notice to Acquirer and has used all commercially reasonable efforts to enter into a customary confidentiality agreement on terms no less favorable to the foregoing actionsCompany that those contained in the Confidentiality Agreement. The Company shall promptly notify Parent Acquirer orally and in writing if any proposal, offer, inquiry proposal or other contact offer is received by, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, and shall, in any such notice to ParentAcquirer, indicate the identity of the Third Party and the terms and conditions of any proposals or offers or the nature of any inquiries or contactscontracts, and thereafter shall keep Parent Acquirer informed, on a reasonably current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect than, those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directors. The Company shall not release any Third Party from, or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement to which the Company is a party, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directorsagreement. As of the date hereof, the Company Company, shall cease, and shall use best efforts cause the Subsidiaries and the officers, directors, employees, representatives and other agents of the Company and the Subsidiaries, to cause thecease, all discussions, negotiations and communications with all Third Parties.
(b) As used in this Agreement, the term "Alternative Transaction" shall mean any bona fide written proposal or offer from any Third Party relating to any (i) merger, consolidation, recapitalization, tender or exchange offer, debt restructuring or similar transaction involving the Company, (ii) sale of more than 30% of the common stock or other capital stock of the Company or (iii) sale of assets (including stock of Subsidiaries) representing more than 30% of the assets of the Company and its Subsidiaries, taken as a whole, including a sale by any means specified in clause (i) of this sentence.
Appears in 1 contract
Inquiries and Negotiations. (a) In connection with any Alternative Transaction (as hereinafter defined), from From the date hereof until the termination of this Agreementhereof, the Company, the Subsidiaries and their respective officers, directors, employees, representatives and other agents will not, directly or indirectly, solicit or initiate any discussions, submissions of proposals or offers or negotiations withwith or, or continue any pre-existing discussions withsubject to the fiduciary duties of the Company's Board of Directors as advised by counsel, or participate in any negotiations or discussions with, or provide any information or data of any nature whatsoever to, or otherwise cooperate in any other way with, or assist or participate in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely ) in connection with a Superior Proposal (as hereinafter defined) any merger, consolidation, sale of any Subsidiary or a proposal division that is reasonably likely material to lead to a Superior Proposal, then but only then may the business of the Company take any and the Subsidiaries, sale of shares of capital stock or other equity securities, tender or exchange offer, recapitalization, debt restructuring or similar transaction involving the foregoing actionsCompany (such transactions being hereinafter referred to as "Alternative Transactions"). The Company shall promptly immediately notify Parent if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, and shall, in any such notice to Parent, indicate the identity of the Third Party and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or and the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect than, those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directors. The Company shall not release any Third Party from, or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement to which the Company is a party, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directors. As of the date hereof, except as contemplated above, the Company shall cease, and shall use best efforts cause the Subsidiaries and the officers, directors, employees, representatives and other agents of the Company and the Subsidiaries to cause thecease all discussions, negotiations and communications with all Third Parties and demand the immediate return of all confidential information previously provided to Third Parties.
(b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Parent, within two business days following such Payment Event, (i) a fee of $6,420,000 in cash, plus (ii) all reasonable and documented out-of-pocket costs and expenses of Parent and Acquisition, including, without limitation, fees and expenses of counsel, accountants, investment
Appears in 1 contract
Samples: Merger Agreement (Amdocs LTD)
Inquiries and Negotiations. The Shareholders, the Company -------------------------- and Surgi-Pack and their respective directors, officers, employees, representatives, advisors or agents (aincluding, without limitation, any investment banker, attorney or accountant retained by any of the Shareholders, the Company and Surgi-Pack) In connection shall immediately cease all existing discussions or negotiations, if any, with any Alternative Transaction parties conducted heretofore with respect to the acquisition or exchange of all or any material portion of the assets or securities of the Company and Surgi-Pack if such acquisition or exchange would adversely affect Buyer's rights to purchase the Business (as hereinafter defined), by direct purchase from the date hereof until the termination of this AgreementShareholders, the Company, Surgi-Pack or otherwise) or any business combination, merger, consolidation or similar transaction with or involving either the Subsidiaries and Shareholders, the Company or Surgi-Pack if such business combination, merger, consolidation or other transaction would adversely affect Buyer's rights to purchase the Business (an "Acquisition Transaction"). Neither the Shareholders, the Company, Surgi-Pack nor any of their respective directors, officers, directors, employees, representatives and other representatives, advisors or agents will not(including, without limitation, any investment banker, attorney or accountant retained by any of the Shareholders, the Company or Surgi-Pack) shall directly or indirectlyindirectly encourage, solicit solicit, participate in or initiate any discussions, submissions of proposals or offers discussions or negotiations with, or continue provide information to, any precorporation, partnership, limited liability company, person or other entity or group (other than Buyer or any of its affiliates) with respect to any inquiries or the making of any offer or proposal concerning an Acquisition Transaction (an "Acquisition Proposal"). The Company or Surgi-existing discussions withPack will take all necessary steps to inform the individuals or entities referred to in the first sentence hereof of the obligations under this Section 4.5. The Company or Surgi-Pack will notify Buyer immediately if any such inquiries or proposals are received, any such information is requested, or participate in any such negotiations or discussions with, or provide any information or data of any nature whatsoever to, or otherwise cooperate in any other way with, or assist or participate in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely in connection with a Superior Proposal (as hereinafter defined) or a proposal that is reasonably likely to lead to a Superior Proposal, then but only then may the Company take any of the foregoing actions. The Company shall promptly notify Parent if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued withcontinued, the Company in respect of an Alternative Transaction, and shall, in any such notice to Parent, indicate the identity name of the Third Party and person or entity making such inquiry, proposal or request, the material terms and conditions of any such proposals or offers or the nature of any inquiries or contactsand, and thereafter thereafter, shall keep Parent Buyer informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoinginquiry, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information toproposal, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect than, those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directorsdiscussions. The Company shall and Surgi-Pack agree not to release any Third Party third party from, or waive any provision provisions of, any such confidentiality agreement or any other confidentiality or standstill agreement to which the Company or Surgi-Pack is a party, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directors. As of the date hereof, the Company shall cease, and shall use best efforts to cause the.
Appears in 1 contract
Inquiries and Negotiations. (ai) In connection with any Alternative Transaction (as hereinafter defined), from From and after the date hereof of this Agreement until the earlier of the Effective Time and the termination of this AgreementAgreement in accordance with its terms, the CompanyCompany and its Subsidiaries shall not, the Subsidiaries and shall not permit their respective officers, directors, employees, representatives representatives, brokers, investment bankers, agents and other agents will notAffiliates to, directly or indirectly, solicit (1) solicit, initiate, continue or initiate engage in discussions or negotiations with any discussionsPerson, submissions encourage submission of any inquiries, proposals or offers or negotiations withby, or continue take any preother action intended or designed to facilitate the efforts of any Person, other than Parent, relating to the possible acquisition of the Company or any of its Subsidiaries (whether by way of arrangement, amalgamation, take-existing discussions withover bid, tender offer, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets (with any such efforts by any such Person, including a firm proposal to make such an acquisition, to be referred to as an "Acquisition Proposal"), (2) provide information with respect to the Company or any of its Subsidiaries, or participate afford any access to the properties, books or records of the Company or any of its Subsidiaries, to any Person, other than Parent, relating to a possible Acquisition Proposal by any Person other than Parent, (3) make or authorize any statement, recommendation or solicitation in support of any negotiations or discussions withpossible Acquisition Proposal by any Person, other than by Parent, or provide (4) enter into an agreement with any information Person, other than Parent, providing for a possible Acquisition Proposal.
(ii) If the Company or data any of its Subsidiaries receives any nature whatsoever tounsolicited offer or proposal to enter negotiations relating to an Acquisition Proposal, or otherwise cooperate in any other way with, request for non-public information relating to the Company or assist or participate in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely Subsidiaries in connection with a Superior Proposal (as hereinafter defined) or a proposal that is reasonably likely to lead to a Superior any Acquisition Proposal, then but only then may the Company take any of the foregoing actions. The Company shall promptly notify Parent if any proposalthereof, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiationsin writing, including discussions or negotiations commenced prior information as to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, and shall, in any such notice to Parent, indicate the identity of the Third Party party making any such offer proposal or request and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a current basis, of all material developments affecting the status and specific terms of any such proposals offer proposal or offers or request, as the status of any such discussions or negotiationscase may be. Without limiting Promptly upon receipt by the generality of the foregoingCompany, the Company shall immediately provide Parent with not less than two business days' notice prior to the execution by the Company a true and complete copy of any definitive Acquisition Proposal or other written communication concerning a possible Acquisition Proposal received from such third party.
(iii) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any parties (other than Parent) conducted heretofore with respect to any Acquisition Proposal. The Company agrees not to release any third party from any confidentiality or standstill agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect than, those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directors. The Company shall not release any Third Party from, or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement foregoing to which the Company is a party.
(iv) The Company shall use commercially reasonable efforts to ensure that the officers, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directors. As directors, employees, agents and Affiliates of the date hereofCompany or any of its Subsidiaries and any bankers, investment bankers or other agents, advisors or representatives retained by the Company shall ceaseare aware of the restrictions described in this Section 7.01(b), and shall use best efforts to cause thebe responsible for any breach of this Section 7.01(b) by such bankers, investment bankers, officers, directors, employees, agents, advisors, representatives or Affiliates.
Appears in 1 contract
Samples: Merger Agreement (Globespan Inc/De)
Inquiries and Negotiations. (a) In connection with any Alternative Transaction (as hereinafter defined), from the date hereof until the termination of this Agreement, the The Company, the Subsidiaries its subsidiaries and their respective directors, officers, directors, employees, representatives and other agents will notshall immediately cease any discussions or negotiations with any parties with respect to any Third Party Acquisition (as defined below). Neither the Company nor any of its subsidiaries shall, nor shall the Company authorize or permit any of its or their respective directors, officers, employees, representatives or agents to, directly or indirectly, solicit encourage, solicit, participate in or initiate any discussions, submissions of proposals or offers discussions or negotiations with, or continue any pre-existing discussions with, or participate in any negotiations or discussions with, with or provide any non-public information to any person or data of any nature whatsoever to, or otherwise cooperate in any other way with, or assist or participate in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" group (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliatesPurchaser or any designees of Parent and Purchaser) concerning any Third Party Acquisition; provided, representatives and agents however, that (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of i) nothing herein shall prevent the Company's Board of Directors from taking and disclosing to the Company's stockholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; (ii) if the Company receives an unsolicited proposal for a Third Party Acquisition from a Third Party, nothing herein shall prevent the Company or its representatives from making such inquiries or conducting such discussions as determined in good faith by the Company's Board of Directors, after consultation with legal counsel, may deem necessary to inform itself for the purpose of exercising its fiduciary duties, and (iii) if the Company receives an unsolicited proposal for a Third Party Acquisition from a Third Party that the Company's Board of Directors by a majority vote determines in its good faith judgment (after consultation with counselwith, and if solely in connection with duly considering the advice of, a Superior Proposal (as hereinafter definedfinancial advisor of nationally recognized reputation) or a proposal that is reasonably likely to lead to result in a Superior Proposal, then the Company and its representatives may conduct such additional discussions or provide such information as the Company's Board of Directors shall determine, but only then may if, prior to such provision of information or additional discussion, (A) such Third Party has entered into a confidentiality and standstill agreement substantially similar to Section 5.3 hereof and Section 7 of the Stock Purchase Agreement which agreement contains provisions that expressly permit the Company take any to comply with the provisions of this Section 5.5; provided, that if the Company enters into a confidentiality agreement without standstill provisions substantially similar to those contained in the Stock Purchase Agreement, then Parent will, to the extent of the foregoing actionsdifference, be relieved of compliance with the Stock Purchase Agreement's standstill provisions and (B) the Company's Board of Directors determines in its good faith judgment, after consultation with legal counsel, that it is required to do so in order to comply with its fiduciary duties. The Company shall promptly notify the Parent if in the event it receives any proposal, offer, proposal or inquiry or other contact is received by, any information is requested from, or any discussions or negotiations, concerning a Third Party Acquisition including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, terms and shall, in any such notice to Parent, indicate conditions thereof and the identity of the Third Party and party submitting such proposal. The Company shall advise the terms and conditions Parent from time to time of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect thandevelopments concerning the same.
(b) Except as set forth in this Section 5.5(b), those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directors. The Company Directors shall not release withdraw, change or modify its recommendation of the transactions contemplated hereby or approve or recommend, or cause the Company to enter into any agreement with respect to, any Third Party fromAcquisition. Notwithstanding the foregoing or anything in this Agreement to the contrary, or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement to which the Company is a party, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to if the Company's Board of Directors. As Directors determines in its good faith judgment, after consultation with legal counsel, that it is required to do so in order to comply with its fiduciary duties, the Company's Board of Directors may withdraw its recommendation of the date hereoftransactions contemplated hereby or approve or recommend a Superior Proposal (as defined below), but in each case only (i) after providing written notice to Parent (a "Notice of Superior Proposal") advising Parent that the Company's Board of Directors has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and (ii) if Parent does not, within five (5) Business Days after Parent's receipt of the Notice of Superior Proposal, make an offer which the Company's Board of Directors determines in its good faith judgment (after consultation with, and duly considering the advice of, a financial advisor of nationally recognized reputation) to be as favorable to the Company's stockholders as such Superior Proposal; provided, however, the Company shall cease, not be entitled to enter into any agreement with respect to a Superior Proposal (excluding a confidentiality and shall use best efforts standstill agreement pursuant to cause theSection 5.5(a)) unless and until this Agreement is terminated by its terms pursuant to Article 7 and the Company has paid all amounts due to Parent and Purchaser thereunder.
Appears in 1 contract
Inquiries and Negotiations. (a) In connection Each Constituent Group shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Alternative Transaction person or entity conducted heretofore in respect of the acquisition of all or any substantial part of the business and properties of such Constituent Group, whether by sale of assets or shares of capital stock, or by merger, consolidation, recapitalization, liquidation or similar transaction (as hereinafter definedeach, an "Acquisition Transaction"). Each member of each Constituent Group shall not, from the date hereof until the termination of this Agreement, the Company, the Subsidiaries and their respective shall not permit its officers, directors, employees, representatives and other or agents will notto, directly or indirectly, (i) solicit or initiate any discussions, submissions of proposals or offers discussions or negotiations with, or continue any pre-existing discussions with, or participate in any negotiations or discussions with, or provide any information or data of any nature whatsoever to, or otherwise cooperate in any other way with, or assist or participate in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely in connection with a Superior Proposal (as hereinafter defined) or a proposal that is reasonably likely to lead to a Superior Proposal, then but only then may the Company take any of the foregoing actions. The Company shall promptly notify Parent if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced prior to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, and shall, in any such notice to Parent, indicate the identity of the Third Party and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the Company shall provide Parent with not less than two business days' notice prior to the execution by the Company of any definitive agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, any person other than the other Constituent Group or entering into negotiations its affiliates concerning an Acquisition Transaction or discussions with(ii) otherwise solicit, initiate or encourage inquiries or the submissions or any Third Party, the Company proposal contemplating an Acquisition Transaction. Each Constituent Group shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable promptly communicate to the Company other Constituent Group the terms of any inquiry or proposal which it may receive in any material respect than, those contained in of an Acquisition Transaction. Such Constituent Group's notification under this Section 6.5 shall include the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability identity of the Third Party to make a person making such proposal to the Company's Board of Directors. The Company shall not release any Third Party from, or waive any provision of, any such confidentiality agreement or any other confidentiality such information with respect thereto as the other Constituent Group may reasonably request. Nothing contained in this Agreement shall be construed to prohibit a Constituent Group from (a), if advised in writing by counsel to be required by fiduciary obligations under applicable law, providing non-public information to, and participating in negotiations with, a person or standstill agreement entity who has made a bona fide offer to effect an Acquisition Transaction and (b) accepting an offer for an Acquisition Transaction which the Company is a party, other than any such provision that would prevent or otherwise restrict Board of Directors of the ability parent entity of a Third Party Constituent Group believes is more favorable to make such Constituent Group's stockholders than the Merger contemplated hereby; provided, however, in the event that an offer for an Acquisition Transaction is accepted by a proposal Constituent Group pursuant to this Section, the parent entity of such Constituent Group shall pay to the Company's Board of Directors. As parent entity of the date hereofother Constituent Group, within 10 days of such acceptance, the sum of $400,000 (the "Break-up Fee"). The Break-up Fee shall not be payable in the event that: (i) Texoil does not receive the fairness opinion of Rauscher, Pierce, Refsnes, Inc. contemplated by Article 7; (ii) litigation is initiated against any party hereto by a third party not acting in concert with a party to this Agreement in which an injunction against, or damages for, the Merger is sought to be obtained; (iii) Resource Investors Management Company shall ceaseLimited Partnership and its affiliates (collectively, and shall use best efforts "RIMCO") do not provide the new financing to cause theTexoil contemplated by Article 7; (iv) an event occurs or a condition exists that has a Material Adverse Effect on the Cliffwood Group or the Texoil Group.
Appears in 1 contract
Samples: Merger Agreement (Texoil Inc /Nv/)
Inquiries and Negotiations. (ai) In connection with any Alternative Transaction (as hereinafter defined), from From and after the date hereof of the Original Agreement until the termination of this AgreementEffective Time, the Company, Company and the Subsidiaries shall not, and shall not permit their respective shareholders, officers, directors, employees, representatives representatives, bankers, investment bankers, agents and other agents will notAffiliates to, directly or indirectly, solicit (1) solicit, initiate, continue or initiate engage in discussions or negotiations with any discussionsPerson, submissions encourage submission of any inquiries, proposals or offers or negotiations withby, or continue take any preother action intended or designed to facilitate the efforts of any Person, other than Parent, relating to the possible acquisition of the Company or any of the Subsidiaries (whether by way of arrangement, amalgamation, take-existing discussions withover bid, tender offer, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets (with any such efforts by any such Person, including a firm proposal to make such an acquisition, to be referred to as an "Acquisition Proposal"), (2) provide information with respect to the Company or any of the Subsidiaries, or participate afford any access to the properties, books or records of the Company or any of the Subsidiaries, to any Person, other than Parent, relating to a possible Acquisition Proposal by any Person other than Parent, (3) make or authorize any statement, recommendation or solicitation in support of any negotiations or discussions withpossible Acquisition Proposal by any Person, other than by Parent, or provide (4) enter into an agreement with any information Person, other than Parent, providing for a possible Acquisition Proposal.
(ii) If the Company or data any of the Subsidiaries receives after the date of the Original Agreement any nature whatsoever tounsolicited offer or proposal to enter negotiations relating to an Acquisition Proposal, or otherwise cooperate in any other way with, request for non-public information relating to the Company or assist or participate in, facilitate or encourage any effort or attempt by, any person, corporation, entity or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, representatives and agents (each, a "Third Party"). Notwithstanding the foregoing, if required by the fiduciary duties of the Company's Board of Directors as determined in good faith by the Board of Directors after consultation with counsel, and if solely Subsidiaries in connection with a Superior Proposal (any Acquisition Proposal, the Company shall immediately notify Parent thereof, in writing, including information as hereinafter defined) to the identity of the party making any such offer proposal or request and the specific terms of such offer proposal or request, as the case may be. Immediately upon receipt by the Company or a proposal that is reasonably likely to lead to a Superior ProposalSubsidiary, then but only then may the Company take shall immediately provide Parent with a true and complete copy of any of the foregoing actions. Acquisition Proposal or other written communication concerning a possible Acquisition Proposal received from such third party.
(iii) The Company shall promptly notify Parent if any proposal, offer, inquiry or ceased and caused to be terminated all existing discussions and negotiations with all parties (other contact is received by, any information is requested from, or any discussions or negotiations, including discussions or negotiations commenced than Parent) conducted prior to the date hereof, are sought to be initiated or continued with, the Company in respect of an Alternative Transaction, and shall, in any such notice to Parent, indicate the identity of the Third Party and the terms and conditions of Original Agreement with respect to any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a current basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. Without limiting the generality of the foregoing, including, without limitation, all discussions and negotiations with third parties regarding the issuance of securities of the Company shall provide Parent with not less than two business days' notice prior to the execution by or other investment(s) in the Company by such third parties whether or not such investments would result in a change of control of the Company. The Company agrees not to release any definitive third party from any confidentiality agreement with respect to any Alternative Transaction or any public announcement relating to the approval of any Alternative Transaction. Prior to furnishing any non-public information to, or entering into negotiations or discussions with, any Third Party, the Company shall obtain an executed confidentiality agreement from such Third Party on terms substantially the same as, or no less favorable to the Company in any material respect than, those contained in the Confidentiality Agreement; provided such agreement need not contain a "standstill" provision or otherwise restrict the ability of the Third Party to make a proposal to the Company's Board of Directors. The Company shall not release any Third Party from, or waive any provision of, any such confidentiality agreement or any other confidentiality or standstill agreement foregoing to which the Company is a party.
(iv) The Company shall use commercially reasonable efforts to ensure that the Shareholders, other than any such provision that would prevent or otherwise restrict the ability of a Third Party to make a proposal to the Company's Board of Directors. As officers, directors, employees, agents and Affiliates of the date hereofCompany or any of the Subsidiaries and any bankers, investment bankers or other agents, advisors or representatives retained by the Company shall ceaseare aware of the restrictions described in this Section 7.01(b), and shall use best efforts be responsible for any breach of this Section 7.01(b) by the Shareholders, such bankers, investment bankers, officers, directors, employees, agents, advisors, representatives or Affiliates.
(v) Nothing in this Section 7.01(b) shall prohibit the Company from informing the Shareholders of any unsolicited Acquisition Proposal if and as required by directors' fiduciary duties under California Law; but this clause shall not permit directors to cause thechange their recommendation in favor of the Merger or to engage in any discussions or negotiations with respect to such Acquisition Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Globespan Inc/De)
