No Solicitation; Acquisition Proposals. (a) Stockholder shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry. (b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 9 contracts
Samples: Support Agreement (Fintrax US Acquisition Subsidiary, Inc.), Support Agreement (Fintrax US Acquisition Subsidiary, Inc.), Support Agreement (Fintrax US Acquisition Subsidiary, Inc.)
No Solicitation; Acquisition Proposals. (a) Stockholder During the period from and including the date of this Agreement to and including the Effective Time, Company shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause authorize or permit any of its other Affiliates Subsidiaries, or Persons acting on any of its or their behalf affiliates, officers, directors, employees, agents or representatives (including employeeswithout limitation any investment banker, investment bankersfinancial advisor, attorneysattorney or accountant retained by Company or any of its Subsidiaries), accountants or other agents, "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse solicit or knowingly encourage (including by way of furnishing information or knowingly facilitate assistance), or take any other action to facilitate, any inquiries, any expression of interest or the submission or announcement making of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to to, an Acquisition Proposal, (B) furnish or disclose enter into or maintain or continue discussions or negotiate with any information regarding the Company person in furtherance of such inquiries or to any Person in connection with, or in response to, obtain an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions agree to or negotiations with endorse any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing in each this Agreement shall prohibit the Board of the foregoing clauses (A)-(D)Directors of Company, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal prior to the time at which this Agreement shall have been approved by Company's stockholders, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives furnishing information to, immediately cease and cause to be terminated any existing solicitation ofor entering into, maintaining or continuing discussions or negotiations with, any Person person that makes an unsolicited, bona fide written Acquisition Proposal after the date hereof if, and to the extent that, the Board of Directors of Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that (i) such Acquisition Proposal would be more favorable to Company's stockholders than the Merger, and (ii) the failure to take such action would result in a breach by the Board of Directors of Company of its fiduciary duties to Company's stockholders under applicable law, and, prior to furnishing any non-public information to such person, Company receives from such person an executed confidentiality agreement with provisions no less favorable to Company than the letter agreement relating to the furnishing of confidential information of Company to Parent referred to in the last sentence of Section 6.3. Company shall promptly (and, in any event within 24 hours) notify Parent after receipt of any Acquisition Proposal or any request for information relating to Company or any of its Subsidiaries or for access to the properties, books or records of Company or any of its Subsidiaries by any person who has informed Company that such person is considering making, or has made, an Acquisition InquiryProposal (which notice shall identify the person making, or considering making, such Acquisition Proposal and shall set forth the material terms of any Acquisition Proposal received), and Company shall keep Parent informed in reasonable detail of the terms, status and other pertinent details of any such Acquisition Proposal.
(b) It is understood that During the period from and including the date of this Agreement limits to and including the rights Effective Time, neither the Board of Stockholder only Directors of Company nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval of this Agreement or the transactions contemplated hereby or the recommendation referred to in the penultimate sentence of Section 6.2; provided, however, that nothing contained in this Agreement will prohibit the Board of Directors of Company from withdrawing or modifying the recommendation referred to in the penultimate sentence of Section 6.2 following the receipt by Company after the date hereof, under circumstances not involving any breach of the provisions of Section 6.6(a), of an unsolicited Acquisition Proposal if, and to the extent that Stockholder is acting in Stockholder's capacity as a stockholder that, the Board of the Directors of Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that (i) the transactions contemplated by such Acquisition Proposal would be more favorable to Company's stockholders than the transactions contemplated hereby, and (ii) the failure to take such action would result in a breach by the Board of Directors of Company of its fiduciary duties to Company's stockholders under applicable law; and provided further that nothing herein shall be construed as preventing Stockholder acting contained in its capacity as an officer or director this Agreement will prohibit the Board of the CompanyDirectors of Company from, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal.
(c) Nothing in this Section 6.2 of the Merger Agreement6.6, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director by the Board of Directors of the Company pursuant to this Section 6.6, will (i) have any effect on Company's obligations under the first sentence of Section 6.2, which obligations shall be deemed absolute and unconditional, (ii) permit Company to constitute a breach terminate this Agreement except in accordance with the provisions of Section 8.1, (iii) permit Company to enter into any agreement providing for any transaction contemplated by an Acquisition Proposal for as long as this Agreement remains in effect, or (iv) affect in any manner any other obligation of Company under this Agreement.
(d) For purposes of this Agreement, "Acquisition Proposal" means an inquiry, offer, proposal or other indication of interest regarding any of the following (other than the transactions contemplated by this Agreement or the Stock Option Agreement with Parent or Merger Sub) involving Company: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of Company and its Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for 20% percent or more of the outstanding shares of capital stock of Company or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (Sterling Software Inc), Merger Agreement (Sterling Software Inc), Merger Agreement (Cayenne Software Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder The Company shall not, and nor shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause it permit any of its other Affiliates subsidiaries to, nor shall it authorize or Persons acting on permit any officer, director or representative or agent of the Company or any of its subsidiaries (including, without limitation, any investment banker, financial advisor, attorney or their behalf (including employees, investment bankers, attorneys, accountants accountant retained by the Company or other agents, "Representatives"any of its subsidiaries) not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage (including by way of furnishing information or knowingly assistance), or take any other action to facilitate the submission or announcement initiation of any inquiries or proposals regarding an Acquisition Proposal (as hereinafter defined), (ii) engage in negotiations or Acquisition Inquiry discussions concerning, or provide any proposals or offers that constitute or would reasonably be expected nonpublic information to lead to an any person relating to, any Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (Diii) approve, agree to approve or recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing contained in each of this Section 5.2 shall prohibit the foregoing clauses (A)-(D)Company or the Board from taking and disclosing to stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act or from making any disclosure to the Company's stockholders if, in the event a Third Party submits good faith reasonable judgment of the Board after consultation with outside legal counsel, the failure to so disclose would be inconsistent with its fiduciary obligations to stockholders under applicable law; and provided, further, that, prior to the time at which Acquisition Sub shall have accepted Shares for payment pursuant to the Offer and to the extent that the Board determines in good faith (after consultation with outside legal counsel) that not to do so would be inconsistent with its fiduciary duties to stockholders under applicable law, (y) the Board on behalf of the Company may, in response to an unsolicited bona fide written Acquisition Proposal (as hereinafter defined), make such inquiries of the Third Party (as hereinafter defined) making such unsolicited bona fide written Acquisition Proposal as may be necessary to inform itself of the particulars of the Acquisition Proposal and, if the Board reasonably believes that such Acquisition Proposal may constitute a Superior Proposal (as hereinafter defined), furnish information or data (including, without limitation, confidential information or data) relating to the Company or its subsidiaries to, and participate in negotiations with, the Third Party (as hereinafter defined) making such unsolicited bona fide written Acquisition Proposal and (z) following receipt of a Superior Proposal (as hereinafter defined), the Board may withdraw or modify its recommendation relating to the Offer or the Merger if the Board determines in good faith after consultation with outside legal counsel that failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Subject to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect 's right to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal terminate this Agreement pursuant to and Section 8.1(f), nothing in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of by the Board pursuant to this Section 5.2 will permit the Company shall be deemed to constitute a breach of enter into any agreement or undertaking providing for any transaction contemplated by an Acquisition Proposal for so long as this AgreementAgreement remains in effect.
Appears in 3 contracts
Samples: Merger Agreement (Duff & Phelps Credit Rating Co), Merger Agreement (Duff & Phelps Credit Rating Co), Merger Agreement (Fsa Acquisition Corp)
No Solicitation; Acquisition Proposals. (a) Stockholder shall notNotwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this Agreement and shall cause each continuing until 5:00 p.m. (New York City time) on the 30th calendar day following the date of its controlled Affiliatesthis Agreement (the “No-Shop Period Start Date”), the Company and its the Company Subsidiaries and their respective officers and directors Representatives shall have the right (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any acting under the direction of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") not tothe Company Board), directly or indirectly, to: (Ai) solicit, initiate, endorse encourage, induce and facilitate, whether publicly or knowingly encourage otherwise, Acquisition Proposals (or knowingly facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any inquiries, proposals or offers or other efforts or attempts that constitute or would are reasonably be expected to lead to an Acquisition Proposal), (B) furnish or disclose any information regarding the Company including by way of providing access to any Person in connection withnonpublic information, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each the Company shall only permit such information to be provided pursuant to an Acceptable Confidentiality Agreement (a copy of which shall be provided by the foregoing clauses Company to Parent promptly after its execution); provided, further, that the Company shall provide to Parent any nonpublic information regarding the Company or the Company Subsidiaries provided to any other Person which was not previously provided to Parent, such additional information to be provided substantially concurrently with the time such information is provided to such other Person and (A)-(D)ii) enter into, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Companyengage in, the Stockholder or any of its Representatives shall not be prohibited from participating in any and maintain discussions or negotiations with respect to a possible tender Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations.
(b) Except as expressly permitted by this Section 5.03 and supportexcept with an Excluded Party (for as long as such Person is an Excluded Party), voting or similar agreement in connection with such Acquisition Proposal if and only if, and following on the Company’s receipt of such Acquisition ProposalNo-Shop Period Start Date, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation ofsolicitation, or encouragement, discussions or negotiations with any Person that may be ongoing that relate to any Acquisition Proposal and shall use its reasonable best efforts to cause any such Person (other than an Excluded Party as provided above) and its Representatives in possession of confidential information about the Company or the Company Subsidiaries that was furnished by or on behalf of the Company to return or destroy all such information. In addition, promptly after any Excluded Party ceases to be an Excluded Party or any Extension Excluded Party ceases to be an Extension Excluded Party, as applicable, but subject to Section 5.03(c), the Company shall use its reasonable best efforts to cause any such Person and its Representatives in possession of confidential information about the Company or the Company Subsidiaries that was furnished by or on behalf of the Company to return or destroy all such information. Except as expressly provided in this Section 5.03, after the No-Shop Period Start Date until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 8.01, the Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and their respective Representatives not to, directly or indirectly, (i) solicit or initiate, or knowingly encourage (including by way of furnishing information or assistance) or induce, or take any other action designed to, or which would reasonably be expected to, facilitate any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding an Acquisition Proposal with, furnish any nonpublic information to, or otherwise cooperate in any way with, any Person (other than Parent and its Representatives) relating to an Acquisition Proposal. On the No-Shop Period Start Date, the Company shall provide Parent with written notice identifying each Excluded Party as of such date and a summary of the Company Board’s reasons for such determination. On the day that is one (1) Business Day prior to the initial scheduled Expiration Date of the Offer (the “Extension Excluded Party Notice Date”), the Company shall provide Parent with written notice identifying each Extension Excluded Party and a summary of the Company Board’s reasons for such determination. The parties agree that, notwithstanding the commencement of the obligations of the Company under this Section 5.03(b) from and after the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 5.03(a) with an Excluded Party (and any of its Representatives) or an Extension Excluded Party (and any of its Representatives), as applicable, with respect to a bona fide written Acquisition Proposal submitted by such Excluded Party or Extension Excluded Party prior to the No-Shop Period Start Date that constitutes or is reasonably expected to result in a Superior Proposal, including with respect to any such amended or revised proposal submitted by such Excluded Party or Extension Excluded Party, for as long as such Person is an Excluded Party or Extension Excluded Party, as applicable. Notwithstanding anything contained herein to the contrary, (i) any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement upon the earlier of (w) 5:00 pm (New York City time) on the Extension Excluded Party Notice Date or (x) immediately at such time as such Acquisition Proposal made by such party is withdrawn, terminated, expires or no longer constitutes or is no longer reasonably expected to result in a Superior Proposal and (ii) any Extension Excluded Party shall cease to be an Extension Excluded Party for all purposes under this Agreement upon the earlier of (y) 5:00 pm. (New York City time) on the 15th calendar day following the No-Shop Period Start Date (the “Cut-off Date”) or (z) immediately at such time as such Acquisition Proposal made by such party is withdrawn, terminated, expires or no longer constitutes or is no longer reasonably expected to result in a Superior Proposal.
(c) Notwithstanding the limitations set forth in Section 5.03(b) or any other provision of this Agreement, if at any time following the No-Shop Period Start Date and prior to the Offer Closing, the Company receives, on an unsolicited basis and in the absence of any violation of this Section 5.03 relating thereto, a bona fide written Acquisition Proposal from a third party that the Company Board determines in good faith (after consultation with the Company’s financial advisors and outside legal counsel) constitutes or would reasonably be expected to result in a Superior Proposal, then the Company may take the following actions prior to the Offer Closing: (A) furnish nonpublic information to the third party making such Acquisition Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement (a copy of which shall be provided to Parent promptly after its execution) and subject to the other restrictions imposed by Section 5.03(a)(i) and (B) engage in discussions or negotiations with the third party and its Representatives with respect to the Acquisition Proposal.
(d) At all times from and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 8.01, the Company shall promptly (and in any event within twenty four-hours and substantially concurrently with providing any such Person with any non-public information) orally and in writing notify Parent if any inquiries, proposals or offers are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, the Company or any of its Representatives, in each case, in connection with, or which would reasonably be expected to result in, an Acquisition Proposal, which notice shall identify the name of the Person making such inquiry, proposal or request or seeking such negotiations or discussions and the material terms and conditions of such inquiry, proposal or request and include copies of all correspondence and written materials provided to the Company or any of its Representatives that describe any material terms and conditions of any such inquiry, proposal or request (and any subsequent material changes to such terms and conditions). The Company shall (i) promptly keep Parent fully informed, in all material respects, of the status and details of any Acquisition Proposal or inquiries related thereto (including any changes in the material terms thereof) and (ii) promptly upon receipt or delivery thereof, provide Parent and its outside legal counsel with copies of all drafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to any Acquisition Proposal exchanged between the Company or any of its Representatives, on the one hand, and the Person making such Acquisition InquiryProposal or any of its Representatives, on the other hand.
(be) It Except as permitted by this Section 5.03(e), neither the Company Board nor any committee thereof shall (i) withdraw, modify or qualify in any manner adverse to Parent or MergerSub, or resolve to or publicly propose to withdraw, modify or qualify in a manner adverse to Parent or MergerSub, the Company Recommendation or otherwise take any action or make any statement in connection with the Transactions that is understood inconsistent with the Company Recommendation, (ii) approve, endorse or recommend, or resolve to or publicly propose to approve, endorse or recommend, any Acquisition Proposal (any of the foregoing actions in clauses (i) and (ii), a “Change of Recommendation”) or (iii) adopt or recommend, or publicly propose to adopt or recommend, or allow the Company or any of the Company Subsidiaries to execute or enter into, any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement or understanding contemplating or otherwise in connection with, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement referred to in Sections 5.03(a) and (c)). Notwithstanding the foregoing, the Company Board may prior to the Offer Closing (A) in response to information obtained after the date of this Agreement limits and that was not reasonably capable of being known by the rights Company Board as of Stockholder only the date of this Agreement, make a Change of Recommendation if the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Company Board to effect a Change of Recommendation would be reasonably likely to be inconsistent with the directors’ fiduciary duties to the extent that Stockholder is acting Company’s stockholders under applicable Law or (B) in Stockholder's capacity as response to a stockholder Superior Proposal received by the Company after the date of this Agreement and in the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary absence of any employee benefit plan or trustviolation of this Section 5.03 relating thereto, from fulfilling cause the obligations of Company to terminate this Agreement pursuant to Section 8.01(h) and concurrently with such office (includingtermination cause the Company to enter into a definitive agreement with respect to such Superior Proposal, subject to satisfaction of its obligations under Section 8.03, if the limitation contained Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would be reasonably likely to be inconsistent with the directors’ fiduciary duties to the Company’s stockholders under applicable Law; provided, however, that the Company Board shall not be entitled to effect a Change of Recommendation or exercise its right to terminate this Agreement pursuant to Section 6.2 8.01(h) until after the fourth Business Day following Parent’s receipt of the Merger Agreementwritten notice (a “Section 5.03(e) Notice”) (it being understood and agreed that a Section 5.03(e) Notice, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer any resolution or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director determination of the Company Board to make a Section 5.03(e) Notice or negotiations with Parent relating thereto as provided below in this Section 5.03(e) shall not be deemed to constitute a breach Change of Recommendation) from the Company advising Parent that the Company Board intends to make a Change of Recommendation or terminate this Agreement pursuant to Section 8.01(h) and specifying the reasons therefor, including, if the basis of the proposed action by the Company Board is a Superior Proposal, the terms and conditions of any Superior Proposal and a copy of the proposed transaction agreement for any such Superior Proposal in the form to be entered into (it being understood and agreed that, in the event of an amendment to the financial terms or other material terms of such Superior Proposal, the Company Board shall not be entitled to exercise such right based on such Superior Proposal, as so amended, until after the second full Business Day following Parent’s receipt of a new Section 5.03(e) Notice from the Company with respect to such Superior Proposal as so amended). In determining whether to terminate this Agreement in response to a Superior Proposal or to make a Change of Recommendation, the Company Board shall take into account any proposals made by Parent to amend the terms of this Agreement, shall cause the Company’s financial adviser and legal counsel to negotiate in good faith with Parent regarding any such proposals and shall not make a Change of Recommendation or terminate this Agreement unless, prior to the effectiveness of such Change of Recommendation or termination, the Company Board, after considering the results of any such negotiations and any revised proposals made by Parent, concludes that it continues to meet the requirements to make a Change of Recommendation under clause (A) above and/or that the Superior Proposal giving rise to the Section 5.03(e) Notice continues to be a Superior Proposal and that it continues to meet the requirements to terminate this agreement under clause (B) above.
(f) Nothing contained in this Section 5.03 shall prohibit the Company from complying with Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act with respect to an Acquisition Proposal that constitutes a tender offer or exchange offer so long as the requirements set forth in this Section 5.03 are satisfied, provided that such rules shall in no way eliminate or modify the effect that any action pursuant to such rules may otherwise have under this Agreement (including any such action which may constitute a Change of Recommendation, it being understood that a statement made pursuant to this Section 5.03(f) other than issuance by the Company of a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act that does not expressly reaffirm the Company Recommendation shall be deemed a Change of Recommendation).
Appears in 2 contracts
Samples: Merger Agreement (Galaxy Dream Corp), Merger Agreement (Rc2 Corp)
No Solicitation; Acquisition Proposals. (a) Stockholder Except as otherwise expressly provided in this Section 7.4, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, neither the Company nor its Subsidiaries shall, nor shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause the Company or any of its other Affiliates Subsidiaries authorize or Persons acting on its or permit any of their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") not Representatives to, directly or indirectly: (i) solicit, initiate or knowingly facilitate or encourage the submission of any inquiry, discussion, offer, proposal or request from any Person (other than Parent) that could constitute, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) engage in or enter into, continue or otherwise participate in any discussions or negotiations in connection with an Acquisition Proposal or any inquiry, discussion, offer, proposal or request that could reasonably be expected to lead to an Acquisition Proposal, (iii) furnish non-public information relating to the Company and its Subsidiaries or afford access to the Company’s and its Subsidiaries’ officers, employees, agents, properties, books, contracts and records to any third party (and its Representatives) (other than to Parent, Merger Sub or any designees of Parent or Merger Sub) in connection with an Acquisition Proposal or any inquiry, discussion, offer, proposal or request that could reasonably be expected to lead to an Acquisition Proposal, (iv) otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposal; or (v) approve, endorse or recommend any transaction under, or any person becoming an “interested stockholder” under, Section 203 of the DGCL. The Company shall immediately cease, and cause its Representatives to immediately cease, any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. The Company shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Acquisition Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, documents and materials relating to an Acquisition Proposal or to the Company or its businesses, operations or affairs heretofore furnished by the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person and immediately terminate any “data room” or similar access of such Persons and their Representatives. For purposes of this Section 7.4, the term “Person” means any Person other than, with respect to the Company, Parent or any Subsidiaries of Parent and, with respect to Parent, the Company. Any violation of the restrictions of this Section 7.4 by any Representative of the Company or any of its Subsidiaries shall be deemed a breach of this Section 7.4 by the Company.
(b) Notwithstanding the foregoing, the Company and the Board of Directors of the Company (or any committee thereof), directly or indirectly through Affiliates or Representatives, may prior to the Company Stockholders Meeting, (A) solicitparticipate or engage in negotiations or discussions with any Person (and its Representatives and financing sources) in response to a bona fide written Acquisition Proposal submitted by such Person after the date hereof and not solicited as a result of any material violation of Section 7.4(a), initiate(B) prior to the Company Stockholders Meeting, furnish to such Person information relating to the Company or any of its Subsidiaries and provide access to the Company’s and its Subsidiaries’ officers, employees, agents, properties, books, contracts and records in each case pursuant to an Acceptable Confidentiality Agreement and only in response to a bona fide written Acquisition Proposal submitted by such Person after the date hereof and not solicited as a result of any violation of Section 7.4(a), or (C) otherwise cooperate with, or facilitate, such Acquisition Proposal not solicited as a result of any material violation of Section 7.4(a); provided, that the Company and its Representatives may communicate in writing with a Person who has made an unsolicited bona fide written Acquisition Proposal (and its Representatives) solely to clarify (and not negotiate) the existing terms of, and ascertain additional facts regarding, such Acquisition Proposal for the purpose of the Company’s Board of Directors informing itself about such Acquisition Proposal and the Person making it; provided, further, that the Company or the Board of Directors of the Company shall be permitted to take an action described in the foregoing clauses (A) through (C) if, and only if, prior to taking such particular action, (x) the Board of Directors of the Company (or any committee thereof) has determined in good faith after consultation with outside legal counsel and financial advisors that (1) with respect to clauses (A) through (C) above, such Acquisition Proposal constitutes, or would be reasonably expected to result in a Superior Proposal and (2) failure to take such action would be inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Law, and (y) prior to furnishing such information or affording such access, the Company has entered into an Acceptable Confidentiality Agreement with such Person and, to the extent nonpublic information that has not been made available to Parent is made available to such Person, furnish such nonpublic information to Parent substantially concurrently with the time it is furnished to such other Person.
(c) Except as expressly set forth in this Section 7.4(c), neither the Company’s Board of Directors nor any committee thereof shall (A) withdraw, qualify, modify or amend (or publicly propose to withdraw, qualify, modify or amend) the Company Board Recommendation in a manner adverse to Parent, (B) approve, endorse or knowingly encourage recommend an Acquisition Proposal, or knowingly facilitate (C) approve, recommend or allow the submission Company to enter into any term sheet, letter of intent, merger agreement, acquisition agreement, contract or announcement understanding relating to or involving an Acquisition Proposal (other than an Acceptable Confidentiality Agreement entered into following compliance with this Section 7.4) (any such term sheet, letter of intent, merger agreement, acquisition agreement, contract or understanding relating to or involving an Acquisition Proposal, an “Alternative Acquisition Agreement”). Notwithstanding anything in Section 7.1 or this Section 7.4 to the contrary, at any time prior to the receipt of the Required Company Vote, the Board of Directors of the Company (or a committee thereof) may, subject to compliance with the terms set forth in this Section 7.4(c) and Section 7.4(d), (x) withdraw, modify or amend in a manner adverse to Parent its approval of this Agreement and the Merger or the Company Board Recommendation (“Change in Recommendation”) (i) in response to a Company Intervening Event, or (ii) following receipt of a bona fide written Acquisition Proposal that was not solicited in material violation of Section 7.4(a) that the Board of Directors of the Company (or a committee thereof) determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Superior Proposal, in each case of clauses (i) and (ii), if, and only if, the Board of Directors of the Company (or a committee thereof) has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Law; provided, however, that for the avoidance of doubt, neither (1) the determination by the Board of Directors of the Company (or a committee thereof) that an Acquisition Proposal constitutes or would be reasonably expected to result in a Superior Proposal; or (2) the delivery by the Company to Parent of any notice contemplated by Section 7.4(d) shall constitute a Change in Recommendation.
(d) Prior to the Company taking any action permitted (i) under Section 7.4(c)(x)(i), (A) the Company shall have provided Parent with three (3) Business Days’ prior written notice advising Parent it intends to effect a Change in Recommendation and specifying, in reasonable detail, the reasons therefor, (B) during such three (3) Business Day period, if requested by Parent, the Company shall have engaged in good faith negotiations with Parent to amend the terms of this Agreement in a manner that obviates the need to effect a Change in Recommendation, and (C) Parent shall not have made, before the end of such three (3) Business Day period, a written, definitive proposal such that the Board of Directors of the Company (or a committee thereof) no longer determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to make a Change in Recommendation would be inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Law, or (ii) under Section 7.4(c)(x)(ii), (A) the Company shall provide Parent with three (3) Business Days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Acquisition Proposal, or any other material amendment to any applicable Acquisition Proposal, shall require a new notice and an additional two (2) Business Day period) advising Parent that the Board of Directors of the Company (or a committee thereof) intends to take such action, and if applicable, specifying the material terms and conditions of the Superior Proposal, (B) the Company shall have engaged in good faith negotiations with Parent (to the extent that Parent desires to so negotiate) to amend the terms of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (C) Parent shall not have made, before the end of such three (3) Business Day period (or subsequent two (2) Business Day period), a written, definitive proposal that the Board of Directors of the Company determines in good faith, after consultation with its financial advisors and outside legal counsel, causes such Superior Proposal to no longer be a Superior Proposal. Such good faith negotiations shall in each case include permitting Parent and its Representatives to meet or negotiate with the Board of Directors of the Company and the Company’s legal and financial advisors.
(e) Without limiting any other terms hereof, the Company shall notify Parent promptly (but in any event within 24 hours) after receipt or occurrence of (i) any Acquisition Inquiry Proposal, (ii) any proposals, discussions, negotiations or any proposals or offers inquiries that constitute or would reasonably be expected to lead to an Acquisition Proposal, and (Biii) furnish or disclose the material terms and conditions of any information regarding such Acquisition Proposal and the Company to identity of the Person making any Person in connection with, or in response to, an such Acquisition Proposal or Acquisition Inquiry, (C) engage in with whom such discussions or negotiations with are taking place. In addition, the Company shall promptly (but in any event within 24 hours) after the receipt thereof, provide to Parent copies of any written documentation material to understanding such Acquisition Proposal which is received by the Company from the Person with respect to (or from any representatives, advisors or agents of such Person) making such Acquisition Proposal or Acquisition Inquiry, with whom discussions or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect negotiations would reasonably be expected to lead to an Acquisition Proposal. The Company shall not, and shall cause each of its Subsidiaries not to, modify, waive, amend or release any provision of any existing standstill or confidentiality agreement to which it or any of its Subsidiaries is a party, and the Company shall, and shall cause its Subsidiaries to, enforce the provisions of any such agreement; provided, however, that, the Company may waive any such standstill provisions solely to permit a third party (that has not been solicited in each material violation of Section 7.4(a)) to make an Acquisition Proposal if the Board of Directors of the foregoing clauses Company determines in good faith (A)-(D), in after consultation with outside legal counsel) that failure to do so would be inconsistent with the event a Third Party submits an unsolicited bona fide written fiduciary duties of the directors of the applicable board under applicable Law. The Company shall keep Parent reasonably informed of the status and material details (including any amendments or proposed amendments) of any such Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any and discussions or negotiations with respect to a possible tender any such Acquisition Proposal and supportshall provide to Parent within 24 hours after receipt thereof all copies of any other documentation material to understanding such Acquisition Proposal (as determined by the Company in good faith) received by the Company from the Person (or from any representatives, voting advisors or similar agreement agents of such Person) making such Acquisition Proposal or with whom such discussions or negotiations are taking place. The Company shall promptly provide to Parent any material non-public information concerning the Company provided to any other Person in connection with such any Acquisition Proposal if that was not previously provided to Parent. The Board of Directors of the Company shall promptly consider in good faith (in consultation with its outside legal counsel and only iffinancial advisors) any proposed alteration of the terms of this Agreement or the Merger proposed by Parent in response to any Acquisition Proposal.
(f) Nothing in this Agreement will prohibit the Company or the Board of Directors of the Company (or a committee thereof) from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or complying with Rule 14d-9 promulgated under the Exchange Act, including a “stop, look and following listen” communication by the Company’s Board of Directors (or a committee thereof) to the stockholders of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication); (ii) complying with Item 1012(a) of Regulation M-A promulgated under the Exchange Act; (iii) informing any Person of the existence of the provisions contained in this Section 7.4; or (iv) making any disclosure to the stockholders of the Company (including regarding the business, financial condition or results of operations of the Company and its Subsidiaries) to comply with applicable Law, it being understood that any such statement or disclosure made by the Board of Directors of the Company (or a committee thereof) pursuant to this Section 7.4(f) must be subject to the terms and conditions of this Agreement and will not limit or otherwise affect the obligations of the Company or the Board of Directors of the Company (or any committee thereof) or any of their Representatives and shall not limit any of Parent’s or Merger Sub’s rights under Article IX in respect of any such position taken or disclosure made, it being understood that nothing in the foregoing will be deemed to permit the Company or the Board of Directors of the Company (or a committee thereof) to effect a Company Board Recommendation change other than in accordance with this Section 7.4. In addition, it is understood and agreed that, for purposes of this Agreement, a factually accurate public statement by the Company or the Board of Directors of the Company (or a committee thereof) that describes the Company’s receipt of an Acquisition Proposal, the identity of the Person making such Acquisition Proposal, the material terms of such Acquisition Proposal and the operation of this Agreement with respect thereto will not be deemed to be (A) a withdrawal, qualification, modification or amendment of the Company Board determines that the Company and its representatives may engage in such discussions Recommendation; (B) an approval, endorsement or negotiations in response recommendation with respect to such Acquisition Proposal pursuant to and Proposal; or (C) a Change in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition InquiryRecommendation.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Healthequity, Inc.), Merger Agreement (Wageworks, Inc.)
No Solicitation; Acquisition Proposals. From the date of this Agreement until the Closing Date or until this Agreement is terminated as provided in Article VIII, Sellers will not directly or indirectly (ai) Stockholder shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates solicit or Persons acting on its or their behalf initiate (including employees, investment bankers, attorneys, accountants by way of furnishing any information) discussions with or other agents, "Representatives"(ii) not to, directly enter into negotiations or indirectly, (A) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection agreements with, or in response furnish any information to, any corporation, partnership, person or other entity or group (other than Buyers, an affiliate of Buyers or their authorized representatives pursuant to this Agreement) concerning any proposal for a merger, sale of substantial assets, sale of shares of stock or securities or other takeover or business combination transaction (an "Acquisition Proposal or Acquisition InquiryTransaction") involving the Business; and Sellers will instruct their officers, (C) engage in discussions or negotiations with directors, advisors and other financial and legal representatives and consultants not to take any Person with respect action contrary to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter the foregoing provisions of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposalthis sentence; provided, however, that in each of the actions prohibited by the foregoing clauses (A)-(D), i) and (ii) shall be subject to any action taken by the Boards of Directors of Sellers in the event exercise of their good faith judgment as to their fiduciary duties to their respective stockholders, which judgment is based upon the advice of independent counsel that a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) failure of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause Boards of Directors to take such action would be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed likely to constitute a breach of this Agreementtheir fiduciary duties to their respective stockholders. Sellers will notify Buyers promptly in writing if Sellers become aware that any inquiries or proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated with Sellers with respect to an Acquisition Transaction and will immediately after receipt provide to Buyers a copy of any letter, proposal or other document in which any proposal for an Acquisition Transaction is made or expressed. Sellers will immediately cease any existing activities, discussions or negotiations with any third parties which may have been conducted on or prior to the date hereof with respect to an Acquisition Transaction and shall direct and use reasonable efforts to cause their officers, advisors and representatives not to engage in any such activities, discussions or negotiations.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Health Management Systems Inc), Asset Purchase Agreement (GHS Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause Neither Oakwood nor any of its other Affiliates Subsidiaries shall, and they shall instruct their respective directors, officers, agents or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") representatives not to, directly or indirectly, (Ai) solicit, initiate, endorse or knowingly encourage (including by providing information or knowingly assistance), facilitate or induce any Acquisition Proposal, (ii) engage or participate in any discussions or negotiations regarding, or furnish or cause to be furnished to any Person any confidential or nonpublic information or data with respect to, or take any other action to facilitate any inquiries or the submission making of any offer or announcement proposal that would reasonably be expected to lead to, an Acquisition Proposal, or (iii) adopt, approve, agree to, accept, endorse or recommend any Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.5 by any Subsidiary of Oakwood shall constitute a breach of this Section 5.5 by Oakwood. In addition to the foregoing, unless this Agreement has been terminated in accordance with Section 9.1, Oakwood shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger. Notwithstanding any other provision in this Agreement, nothing herein shall restrict Oakwood or any of its Subsidiaries, or their respective directors, officers, agents or representatives, from (y) informing any Person of the terms of Sections 5.1 and 5.5 or (z) seeking a clarification or other information from any Person with respect to an Acquisition Proposal.
(b) Promptly (but in no event more than 48 hours) following receipt of any Acquisition Proposal or Acquisition Inquiry any request for nonpublic information or any proposals or offers inquiry that constitute or would reasonably be expected to lead to an any Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person Oakwood shall advise BFST in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each writing of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, request or inquiry, and the Company Board determines terms and conditions of such Acquisition Proposal, request or inquiry (including, in each case, the identity of the Person making any such Acquisition Proposal, request or inquiry), and Xxxxxxx shall as promptly as reasonably practicable provide to BFST (i) a copy of such Acquisition Proposal, request or inquiry, if in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Xxxxxxx shall keep BFST reasonably informed on a reasonably current basis of any material developments, discussions, negotiations and communications regarding (including amendments or proposed amendments to) such Acquisition Proposal, request or inquiry.
(c) Notwithstanding anything herein to the contrary, if at any time prior to the Oakwood Shareholder Meeting either Oakwood or any of its Subsidiaries receives an Acquisition Proposal that did not result from a breach of Section 5.5(a) and that the Company board of directors of Oakwood determines in good faith, after consultation with its legal counsel and financial advisor, constitutes or would be reasonably be expected to lead to a Superior Proposal, then Oakwood or any of its representatives Subsidiaries may (i) engage or participate in such discussions or negotiations in response to with the Person making such Acquisition Proposal (and its representatives) and (ii) furnish or cause to be furnished to such Person (and its representatives) any confidential or nonpublic information or data with respect to Oakwood and any of its Subsidiaries, provided that before furnishing any such information to such Person pursuant to this clause (ii), Oakwood shall have entered into a customary confidentiality agreement with such Person and, provided further, that such information shall be provided by Oakwood to BFST prior to or substantially concurrently with providing such information to such Person to the extent not previously furnished to BFST.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Oakwood Shareholder Meeting, the board of directors of Oakwood may make a Change in Recommendation and in accordance with submit this Agreement to Oakwood’s shareholders without the Oakwood Board Recommendation (although the resolution approving this Agreement may not be rescinded), if (i) Oakwood has received a Superior Proposal (after giving effect to the terms of any revised offer by BFST pursuant to this Section 6.2(a5.5(d)), and (ii) the board of directors of Xxxxxxx has determined in good faith, after consultation with its financial advisors and outside legal counsel, that it would be reasonably expected to result in a violation of the Merger Agreementdirectors’ fiduciary duties under applicable law to fail to make the Change in Recommendation; provided, that the board of directors of Oakwood may not take the actions set forth in this Section 5.5(d) unless:
(i) such Superior Proposal did not result from a violation of this Section 5.5;
(ii) Oakwood has provided BFST at least four (4) Business Days prior written notice of its intention to take such action and a copy of any proposed agreement or other document relating to such Superior Proposal (including the identity of the Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) making the Superior Proposal);
(iii) during such four (4) Business Day period, Oakwood has and has caused its financial advisors and outside legal counsel to, consider and negotiate with BFST in good faith (to the extent BFST desires to so negotiate) regarding any proposals, adjustments or modifications to the terms and conditions of this Agreement proposed by BFST; and
(iv) the board of directors of Xxxxxxx has determined in good faith, after consultation with its financial advisors and outside legal counsel and considering the results of such negotiations and giving effect to any proposals, amendments or modifications proposed in writing by BFST prior to the close of business on such fourth (4th) Business Day, if any, that such Superior Proposal remains a Superior Proposal and that it would nevertheless reasonably be expected to result in a violation of the director’s fiduciary duties under applicable law to fail to make the Change in Recommendation. Stockholder Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 5.5(d) and will require a new determination and notice period as referred to in this Section 5.5(d); provided, that such notice period shall be two (2) Business Days.
(e) Oakwood and each of its Subsidiaries shall, and Oakwood shall cause direct its Representatives representatives to, (i) immediately cease and cause to be terminated any and all existing solicitation ofactivities, or discussions or negotiations withwith any Persons conducted heretofore with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any Person relating (other than BFST, b1BANK and their representatives) that has made or indicated an intention to make an Acquisition Proposal, and (iii) except to the extent the board of directors of Oakwood determines that such action or failure to act would reasonably be expected to result in a violation of the director’s fiduciary duties under applicable law, not waive or amend any Acquisition Proposal “standstill” provision or Acquisition Inquiryprovisions of similar effect to which it is a party or of which it is a beneficiary and shall strictly enforce any such provisions.
(bf) It is understood that Nothing contained in this Agreement limits the rights shall prevent Oakwood or its board of Stockholder only directors from making any other disclosure to the extent shareholders of Oakwood that Stockholder Oakwood or its board of directors determines in good faith is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations reasonably required by the fiduciary obligations of Stockholder acting solely applicable law; provided, that any Change in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of Recommendation must comply with this AgreementSection 5.5.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Business First Bancshares, Inc.), Agreement and Plan of Reorganization (Business First Bancshares, Inc.)
No Solicitation; Acquisition Proposals. (a) Stockholder The Company shall not, and nor shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause it permit any of its other Affiliates subsidiaries to, nor shall it authorize or Persons acting on permit any officer, director or representative or agent of the Company or any of its subsidiaries (including, without limitation, any investment banker, financial advisor, attorney or their behalf (including employees, investment bankers, attorneys, accountants accountant retained by the Company or other agents, "Representatives"any of its subsidiaries) not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage (including by way of furnishing information or knowingly assistance), or take any other action to facilitate the submission or announcement initiation of any inquiries or proposals regarding an Acquisition Proposal (as hereinafter defined), (ii) engage in negotiations or Acquisition Inquiry discussions concerning, or provide any proposals or offers that constitute or would reasonably be expected nonpublic information to lead to an any person relating to, any Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (Diii) approve, agree to approve or recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing contained in each of this Section 4.3 shall prohibit the foregoing clauses (A)-(D)Company or the Board from taking and disclosing to stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act or from making any disclosure to the Company's stockholders if, in the event good faith reasonable judgment of the Board after consultation with independent counsel, the failure to so disclose would be inconsistent with its fiduciary obligations to stockholders under applicable law; and provided, further, that, prior to the Stockholders Meeting and to the extent that the Board determines in good faith (after consultation with independent counsel) that not to do so would be inconsistent with its fiduciary duties to stockholders under applicable law, (y) the Board on behalf of the Company may upon the bona fide unsolicited request of a Third Party submits (as hereinafter defined) furnish information or data (including, without limitation, confidential information or data) relating to the Company or its subsidiaries for the purposes of an Acquisition Proposal and participate in negotiations with a person making an unsolicited bona fide written Acquisition Proposal to the Companyand (z) following receipt of a Superior Proposal (as hereinafter defined), the Stockholder Board may withdraw or modify its recommendation relating to this Agreement or the Merger if the Board determines in good faith after consultation with outside legal counsel that failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law; provided, however, that neither the Company nor the Board may (a) withdraw, modify or change its recommendation relating to this Agreement, (b) approve or recommend a Superior Proposal or (c) terminate this Agreement, unless prior to taking any of its Representatives shall not be prohibited from participating the actions referred to in any discussions clauses (a), (b) or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, (c) the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance has complied with the terms of Section 6.2(a7.1(g) of herein. Subject to the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause Company's right to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that terminate this Agreement limits the rights of Stockholder only pursuant to the extent that Stockholder is acting Section 7.1(f), nothing in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) this Agreement and no action taken solely in any such capacity as an officer or director of by the Board pursuant to this Section 4.3 will permit the Company shall be deemed to constitute a breach of enter into any agreement or undertaking providing for any transaction contemplated by an Acquisition Proposal for so long as this AgreementAgreement remains in effect.
Appears in 2 contracts
Samples: Merger Agreement (Bridgestreet Accommodations Inc), Merger Agreement (Meristar Hotels & Resorts Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder Company -------------------------------------- shall not, and nor shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause it permit any of its other Affiliates Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any officer, director or Persons acting on its employee of, or their behalf (including employeesany investment banker, investment bankers, attorneys, accountants attorney or other agentsadvisor or representative of, "Representatives"Company or any of its Subsidiaries to, (i) not tosolicit or initiate, or intentionally encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (Aii) solicitparticipate in any discussions or negotiations regarding any Acquisition Proposal, initiateor, endorse in connection with any Acquisition Proposal, furnish to any Person any information or knowingly encourage data with respect to or access to the properties of Company or any of its Subsidiaries, or take any other action, to knowingly facilitate the submission or announcement making of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an any Acquisition Proposal or Acquisition Inquiry, (Ciii) engage in discussions or negotiations with enter into any Person agreement with respect to any Acquisition Proposal or Acquisition Inquiry, approve or (D) approve, recommend or enter into, resolve to approve any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, howeverthat nothing contained in this Section 6.5 or any other provision hereof shall prohibit Company or Company's Board of Directors from (i) taking and disclosing to Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, that in each of the foregoing clauses or (A)-(D)ii) making such disclosure to Company's stockholders as, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal good faith judgment of Company's Board of Directors, after consultation with outside counsel, is required under, or is necessary to comply with, applicable law, provided that Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect to the CompanyOffer or the Merger or approve or recommend, the Stockholder or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of its Representatives shall not be prohibited from participating in this Agreement, Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to a possible tender any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Shares for payment pursuant to the Offer, Company may furnish information concerning its and/or its Subsidiaries' business, properties or assets to any person or group and support, voting or similar agreement may negotiate and participate in connection discussions and negotiations with such Acquisition Proposal if and only if, and following the Company’s receipt of such person or group concerning an Acquisition Proposal, provided that such person or group shall have entered into a confidentiality agreement, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response confidentiality provisions of which shall be no more favorable to such Acquisition Proposal pursuant to and third party than those provided for in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Letter Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer if: (x) such Person or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute group has submitted a breach of this Agreement.Superior Proposal; and
Appears in 2 contracts
Samples: Merger Agreement (Sterling Software Inc), Merger Agreement (Interlink Computer Sciences Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder From the Execution Date until the First Closing Date or, if earlier, the termination of this Agreement pursuant to Article IX, Seller shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) Subsidiaries not to, and will instruct and shall use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") Representatives not to, directly or indirectly, : (Ai) solicit, initiate, endorse initiate or knowingly encourage or knowingly intentionally facilitate any inquiry with respect to, or the making, submission or announcement of of, any Acquisition Proposal or Acquisition Inquiry or any proposals or offers proposal that constitute or would reasonably be expected to lead to an any Acquisition Proposal, (Bii) furnish or disclose any information regarding the Company to any Person any non-public information relating to Seller or any of its Subsidiaries in connection with, or in response to, with an Acquisition Proposal or Acquisition Inquiry(except to the extent specifically permitted pursuant to Section 6.5(b)), (Ciii) participate or engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, except to notify such Person as to the existence of the provisions of this Agreement or to the extent specifically permitted pursuant to Section 6.5(b), (iv) approve, endorse or recommend any Acquisition Proposal or Acquisition Inquiry(except to the extent specifically permitted pursuant to Section 6.5(d)), or (Dv) approve, recommend or enter into, into any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder document or any of its Representatives shall not be prohibited from participating in any discussions agreement, commitment or negotiations with respect to a possible tender and support, voting understanding contemplating or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person otherwise relating to any Acquisition Proposal or a transaction contemplated thereby (except for confidentiality agreements specifically permitted pursuant to Section 6.5(b)). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative of Seller or any Subsidiary of Seller shall be a breach of this Section 6.5(a) by Seller. On the Execution Date, subject to Section 6.5(b) Seller shall, and shall cause each of its Subsidiaries to, immediately cease and use commercially reasonable efforts to cause its Representatives to terminate any solicitation, discussion or negotiation with any Persons conducted by Seller or its Subsidiaries or any of their Representatives prior to the Execution Date with respect to any Acquisition InquiryProposal.
(b) It is understood that Notwithstanding anything to the contrary contained in Section 6.5(a), if at any time following the Execution Date and prior to the earlier of obtaining the Required Seller Stockholder Vote and the termination of this Agreement limits pursuant to Article IX (i) Seller has fully complied with its obligations in Section 6.5(a) and has received an Acquisition Proposal from any Person or “group” (as determined under Section 13(d)(3) of the rights Exchange Act) that the board of Stockholder only directors of Seller believes in good faith to be bona fide, and (ii) the board of directors of Seller determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes or may reasonably be expected to result in a Superior Proposal, then Seller may (A) furnish information (including non-public information) with respect to Seller and its Subsidiaries to the Person or group making such Acquisition Proposal and (B) participate in discussions or negotiations with the Person or group making such Acquisition Proposal regarding such Acquisition Proposal; provided, that Seller (x) will not, and will not allow its Subsidiaries to (and will use commercially reasonable efforts to cause its Representatives not to), disclose any non-public information to such Person or group without first entering or having entered into a confidentiality agreement with such Person or group that is at least as restrictive on such Person or group as the Confidentiality Agreement is on Buyer and (y) will promptly provide to Buyer any material non-public information concerning Seller or its Subsidiaries provided by Seller to such other Person or group which was not previously made available to Buyer, except to the extent restricted by applicable Laws.
(c) From and after the Execution Date, Seller shall promptly (within 48 hours of, or the next Business Day immediately following, if later) notify Buyer in the event that Stockholder any of Seller, its Subsidiaries or its Representatives receives any Acquisition Proposal or written indication by any Person or group that it is acting in Stockholder's capacity as a stockholder considering making an Acquisition Proposal and shall disclose to Buyer the identity of the Companyother Person making such Acquisition Proposal. Seller shall keep Buyer informed (orally and in writing) on a current basis of the occurrence of any material changes or developments of the status of any such Acquisition Proposal or written indication (including the material terms and conditions thereof and of any material modification thereto), and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office material developments related thereto.
(including, subject d) Notwithstanding anything to the limitation contrary contained in Section 6.2 6.5(a), the board of directors of Seller may, at any time prior to obtaining the Required Seller Stockholder Vote, withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Buyer, the Seller Board Recommendation and/or endorse or recommend to Seller’s stockholders any Superior Proposal (a “Change of Board Recommendation”) if, but only if, (A) the board of directors of Seller concludes in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with its fiduciary obligations under applicable Law and (B) in the case of any Superior Proposal, Seller has given Buyer five (5) Business Days prior written notice that the board of directors intends to make a Change of Board Recommendation (the “Superior Proposal Notice”) and for a period of not less than five (5) Business Days after Buyer’s receipt of such Superior Proposal Notice, Seller shall, if requested by Buyer, negotiate in good faith with Buyer to revise this Agreement so that the Acquisition Proposal that constituted a Superior Proposal no longer constitutes a Superior Proposal (a “Former Superior Proposal”). The terms and conditions of this Section 6.5 shall again apply to any inquiry or proposal made by any Person who withdraws a Superior Proposal or who made a Former Superior Proposal (after withdrawal or after such time as their proposal is a Former Superior Proposal). Seller may, if it receives an Acquisition Proposal, delay the mailing of the Merger AgreementProxy Statement and/or the holding of the Seller Stockholders’ Meeting, in each case to provide a reasonable opportunity for the board of directors of Seller to consider such Acquisition Proposal and to determine the effect of the same, if any, on the Seller Board Recommendation. Except as permitted by this Section 6.5, the performance Proxy Statement shall include the Seller Board Recommendation.
(e) Nothing contained in this Agreement shall prohibit the board of obligations directors of Seller from disclosing the fact that the board of directors of Seller has received an Acquisition Proposal and the terms of such Acquisition Proposal, if the board of directors of Seller determines, after consultation with its outside legal counsel, that (i) failure to make such disclosure would be inconsistent with its fiduciary duties under applicable Law or (ii) Seller is otherwise required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciaryto make such disclosure.
(f) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach For purposes of this Agreement., (i) “Acquisition Proposal” means any inquiry, offer or proposal, or any indication of interest in making an offer or proposal, made by a Person or group at any time which is structured to permit such Person or group to acquire beneficial ownership of any Purchased Assets or at least twenty-five percent (25%) of the assets
Appears in 2 contracts
Samples: Purchase and Collaboration Agreement (Watson Pharmaceuticals Inc), Purchase and Collaboration Agreement (Columbia Laboratories Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, (1) the Company shall, and the Company shall cause its and its Subsidiaries' respective Representatives to, immediately cease and terminate any existing solicitation, initiation, knowing encouragement, discussion or negotiation with any Third Party conducted heretofore by the Company, its Subsidiaries or their respective Representatives with respect to any Acquisition Proposal and (2) the Company shall not, and the Company shall cause each of its controlled Affiliates, and its and their Subsidiaries' respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") Representatives not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage (including by way of furnishing non-public information), or knowingly facilitate take any other action to facilitate, any inquiries or the making or submission or announcement of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to an to, any Acquisition Proposal, ; (Bii) furnish or disclose enter into any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person agreement with respect to any Acquisition Proposal or Acquisition Inquiryenter into any agreement requiring the Company to abandon, terminate or fail to consummate the acquisition of Shares pursuant to the Offer or the Merger; (iii) participate or engage in any discussions or negotiations with, or disclose or provide any non-public information or data relating to the Company or its Subsidiaries to any Third Party relating to an Acquisition Proposal (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitmentexcept as required by legal process), or agreement in principle (whether written knowingly facilitate any effort or oral, binding attempt to make or nonbinding) with respect to implement an Acquisition Proposal or accept an Acquisition Proposal; providedor (iv) enter into any letter of intent, however, that agreement or similar document relating to any Acquisition Proposal.
(b) Notwithstanding the restrictions set forth in each of the foregoing clauses (A)-(DSection 6.2(a), in if, at any time prior to the event a Third Party submits acquisition of Shares pursuant to the Offer, (1) the Company has received an unsolicited bona fide written proposal from a Third Party relating to an Acquisition Proposal (under circumstances in which the Company has complied in all material respects with its obligations under Section 6.2(a)) and (2) the Board of Directors of the Company concludes in good faith (after consultation with a financial advisor of nationally recognized reputation and after receiving the advice of its outside counsel) (i) that such Acquisition Proposal may reasonably constitute a Superior Proposal and (ii) that the failure to provide such information or participate in such negotiations or discussions would result in a breach by the Board of Directors of the Company of its fiduciary duties to the Company's stockholders under applicable law, the Stockholder or any Company may, subject to its giving Parent 24 hours prior written notice of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect the identity of such Third Party and, to a possible tender the extent known, the terms and support, voting or similar agreement in connection with conditions of such Acquisition Proposal if and only if, and following of the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response 's intention to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives furnish nonpublic information to, immediately cease and cause to be terminated any existing solicitation of, or enter into discussions or negotiations with, such Third Party, (x) furnish information with respect to the Company and its Subsidiaries to any Person relating Third Party pursuant to a customary confidentiality agreement containing terms not materially less restrictive than the terms of the Confidentiality Agreement dated March 9, 2001, entered into between the Company and Parent, as the same may be amended, supplemented or modified (the "Confidentiality Agreement"), provided that a copy of all such information is delivered simultaneously to Parent if it has not previously been so furnished to Parent, and (y) participate in discussions or negotiations regarding such proposal or take any of the actions described in Section 6.2(a)(2)(i) through (iv),
(c) The Company shall within 24 hours notify and advise Parent orally and in writing of any Acquisition Proposal and the terms and conditions of such Acquisition Proposal. The Company shall inform Parent on a prompt and current basis of the status of any discussions regarding, or relating to, any Acquisition InquiryProposal with a Third Party (including amendments and proposed amendments) and, as promptly as practicable, of any change in the price, structure or form of the consideration or material terms of and conditions regarding the Acquisition Proposal. In fulfilling its obligations under this paragraph (c) of this Section 6.2, the Company shall provide promptly to Parent copies of all material written correspondence or material written documents furnished to the Company or its Representatives by or on behalf of such Third Party.
(bd) It is understood The Company agrees that it will promptly inform its and its Subsidiaries' respective Representatives of the obligations undertaken in this Section 6.2.
(e) Nothing contained in this Agreement limits shall prohibit the rights of Stockholder only Company from taking and disclosing to the extent that Stockholder is acting in Stockholder's capacity its stockholders a position as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by Rule 14d-9 or Rule 14e-2(a) promulgated under the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciaryExchange Act.
(f) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach For purposes of this Agreement.,
Appears in 2 contracts
Samples: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "“Representatives"”) not to, directly or indirectly, (A) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal A) through (D) other than as permitted pursuant to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) . It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's ’s capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder or any of its Affiliates acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 2.3 and Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement; and it is further understood that notwithstanding anything to the contrary provided in this Agreement (but subject to the immediately following proviso), in the event that a Third Party submits an unsolicited bona fide Acquisition Proposal to the Company, the Stockholder or any of its Affiliates or Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if the Company and its representatives are permitted to engage in discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with Section 6.2(a) of the Merger Agreement; provided, further, that in no event shall the Stockholder take any action in clause (D) above prior to the termination of the Agreement.
(b) Stockholder shall notify Parent in writing promptly (but in no event later than 24 hours) after it obtains knowledge of the receipt by Stockholder, any of its Affiliates or any of its or their respective Representatives of any Acquisition Proposal or Acquisition Inquiry, any negotiations or discussions that are sought to be initiated or continued with Stockholder or Stockholder’s Representatives in connection with any Acquisition Proposal, or any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Person (which notification shall include the identity of the Person making or submitting such Acquisition Proposal, Acquisition Inquiry or request, and the material terms and conditions thereof). Stockholder shall keep Parent reasonably informed of any material change to the terms of such Acquisition Proposal or Acquisition Inquiry.
Appears in 2 contracts
Samples: Support Agreement (Hershey Co), Support Agreement (Amplify Snack Brands, INC)
No Solicitation; Acquisition Proposals. (a) Stockholder From the date of this Agreement until the earlier of the Closing or the termination of this Agreement pursuant to Section 15 below, Parent shall not, and shall cause each of its controlled Affiliates, and its Seller and their respective officers agents, employees, officers, directors, shareholders, advisors and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf representatives (including employeesany investment banker, investment bankers, attorneys, accountants attorney or other agents, "Representatives"accountant retained by Parent or Seller) not to, directly or indirectly, (Ai) solicit, initiate, endorse encourage, induce or knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any proposals or offers action that constitute or would could reasonably be expected to lead to an Acquisition Proposal, ; (Bii) furnish or disclose any information regarding the Company Parent or Seller to any Person in connection with, with or in response to, to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Inquiry, Proposal; (Ciii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition InquiryProposal, or (Div) approve, endorse or recommend any Acquisition Proposal; or (v) enter into, into any letter of intent or similar documentdocument or any Contract contemplating or otherwise relating to any Acquisition Proposal.
(b) Notwithstanding the foregoing, agreement or commitmentSection 9.05(a) shall not prohibit , prior to the receipt of the Required Parent Shareholder Vote, Parent from furnishing information regarding Parent and Seller to, or entering into discussions with, any Person in response to a Superior Proposal that is submitted to Parent by such Person (and not withdrawn) if: (i) Parent shall not have breached or taken any action inconsistent with any of the provisions set forth in this Section 9.05; (ii) the Board of Directors of Parent concludes in good faith, after having taken into account the written advice of its outside legal counsel and financial adviser, that such action is required in order for the Board of Directors of Parent to comply with its fiduciary duties to Parent's shareholders under applicable law; (iii) at least two Business Days prior to furnishing any such information to, or entering into discussions with, such Person, Parent gives Buyer written notice of the identity of such Person and of Parent's intention to furnish information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement that is no less favorable to Parent than the Confidentiality Agreement entered into between Parent and Buyer; and (iv) at least two Business Days prior to furnishing any such information to such Person, Parent furnishes such information to Buyer (to the extent such information has not been previously furnished by Parent to Buyer).
(c) Parent shall promptly (and in principle (whether written no event later than 24 hours after receipt of any Acquisition Proposal or oral, binding any inquiry or nonbinding) with respect indication of interest that could reasonably be expected to lead to an Acquisition Proposal; provided, however, that ) advise Buyer orally and in each writing of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following or any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal (including the Company’s receipt identity of the Person making or submitting such Acquisition Proposal, inquiry or indication of interest and the Company Board determines terms thereof) that is made or submitted by any Person prior to the Company Closing. Parent shall keep Buyer reasonably and its representatives may engage in such discussions or negotiations in response promptly informed with respect to the status of any such Acquisition Proposal pursuant to Proposal, inquiry or indication of interest and in accordance with the terms of Section 6.2(aany material modification or proposed material modification thereto.
(d) of the Merger Agreement. Stockholder shall, and Parent shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation discussions with any Person that relate to any Acquisition Proposal or any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal.
(e) Parent agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, "standstill" or discussions similar agreement in connection with a possible Acquisition Transaction to which Parent is a party or negotiations withunder which Parent has any rights, and will use its reasonable best efforts to enforce or cause to be enforced each such agreement at the request of Buyer. Parent also will promptly request each Person that has executed a confidentiality agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return all confidential information heretofore furnished to such Person by or on behalf of the Company.
(f) Neither the Board of Directors of Parent nor any Person committee thereof shall authorize, cause or permit Parent or Seller to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement constituting or relating to any Acquisition Proposal or Acquisition Inquiry(other than a confidentiality agreement referred to in Section 9.05(b) entered into in the circumstances referred to in Section 9.05(b)).
(bg) It is understood that Subject to Section 9.05(h), neither the Board of Directors of Parent nor any committee thereof shall, or shall publicly propose to, withdraw, qualify, modify, change or amend in any manner adverse to Buyer the Parent Recommendation or the approval by the Board of Directors of Parent of this Agreement limits and the rights of Stockholder only transactions contemplated hereby (a "Parent Change in Recommendation").
(h) Notwithstanding anything to the extent that Stockholder is acting contrary set forth in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger this Agreement, the performance Board of obligations required by Directors of Parent may effect a Parent Change in Recommendation at any time prior to the Parent Shareholders Meeting, if (i) the Board of Directors of Parent determines in good faith, after having taken into account the written advice of its outside legal counsel, that the failure to effect a Parent Change in Recommendation would be a breach of its fiduciary obligations duties to Parent's shareholders under applicable law, and (ii) at least two (2) Business Days prior to such Parent Change in Recommendation, Parent shall have provided to Buyer a written notice of Stockholder acting solely its intention to make such a Parent Change in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company Recommendation (which notice shall not be deemed to be in and of itself, a Parent Change in Recommendation).
(i) Nothing contained in this Section 9.05 shall prohibit Parent from complying with Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act with respect to an Acquisition Proposal so long as the requirements set forth in this Section 9.05 are satisfied, provided that such Rules shall in no way eliminate or modify the effect that any action pursuant to such Rules may otherwise have under this Agreement (including any such action which may constitute a breach of this AgreementChange in Recommendation).
Appears in 1 contract
No Solicitation; Acquisition Proposals. From the date hereof until the Closing or until this Agreement is terminated or abandoned as provided in Article VIII, Seller shall not directly or indirectly (ai) Stockholder shall notsolicit or ------------ initiate (including by way of furnishing any information) discussions with or (ii) enter into negotiations or agreements with, or furnish any information to, any corporation, partnership, person or other entity or group (other than Buyer, an affiliate of Buyer or its authorized representatives) concerning any proposal for a merger, sale of substantial assets, sale of shares of stock or securities or other takeover or business combination transaction (the "ACQUISITION PROPOSAL") involving either of the Companies, and shall each of the Companies will instruct its officers, directors, advisors and other financial and legal representatives and consultants not to take any action contrary to the foregoing provisions of this sentence. Seller will, or will cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not the Companies to, and will instruct and use commercially reasonable efforts to cause notify Buyer promptly in writing if it becomes aware that any of its other Affiliates inquiries or Persons acting on its or their behalf (including employeesproposals are received by, investment bankersany information is requested from, attorneys, accountants or other agents, "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any proposals negotiations or offers that constitute or would reasonably discussions are sought to be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding initiated with either of the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) Companies with respect to an Acquisition Proposal; provided. Seller shall immediately cease any existing activities, however, that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with any third parties which may have been conducted on or prior to the date hereof with respect to a possible tender and support, voting or similar agreement in connection with such an Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall direct and use reasonable efforts to cause its Representatives toofficers, immediately cease advisors and cause representatives not to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely engage in any such capacity as an officer activities, discussions or director of the Company shall be deemed to constitute a breach of this Agreementnegotiations.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Security Group Inc/Tn)
No Solicitation; Acquisition Proposals. (a) Stockholder The Company shall not, and nor shall cause each it permit any of its controlled Affiliates, and its and their respective officers and directors (if applicable) not the Company Subsidiaries to, and will instruct and use commercially reasonable efforts to cause nor shall it authorize or permit any officer, director or representative or agent of the Company or any of its other Affiliates the Company Subsidiaries (including, without limitation, any investment banker, financial advisor, attorney or Persons acting on its accountant retained by the Company or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives"any of the Company Subsidiaries) not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage (including by way of furnishing non-public information), or knowingly take any other action to facilitate the submission or announcement initiation of any inquiry or proposal regarding an Acquisition Proposal (as hereinafter defined), (ii) engage in negotiations or Acquisition Inquiry discussions concerning, or provide any proposals or offers that constitute or would reasonably be expected nonpublic information to lead to an any person relating to, any Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (Diii) approve, agree to approve or recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing contained in each this Section 5.4 shall prohibit the Company or the Board from taking and disclosing to shareholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act; and provided, further, that (y) the Board on behalf of the foregoing clauses Company may upon the bona fide unsolicited request of a Third Party (A)-(D)as hereinafter defined) furnish information or data (including, without limitation, confidential or non-public information or data) relating to the Company or the Company Subsidiaries for the purposes of an Acquisition Proposal and participate in negotiations with a person making an unsolicited expression of interest believed by the Board in good faith to be a bona fide indication of such person's desire to pursue the possibility of making an Acquisition Proposal that, in the event good faith judgment of the Board, could reasonably lead to a Third Party submits an unsolicited bona fide written Acquisition Superior Proposal (as hereinafter defined) and (z) the Board may withdraw or modify its recommendation relating to this Agreement or the Merger if the Board determines in good faith after consultation with its financial advisor that the Merger is no longer in the best interests of the Company's shareholders and that such withdrawal or modification is, therefore, required in order to satisfy its fiduciary duties to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry's shareholders under applicable Law.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Pennichuck Corp)
No Solicitation; Acquisition Proposals. (a) Stockholder Company shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause authorize or permit any of its other Affiliates Subsidiaries, or Persons acting on any of its or their behalf affiliates, officers, directors, employees, agents or representatives (including employeeswithout limitation any investment banker, investment bankersfinancial advisor, attorneysattorney or accountant retained by Company or any of its Subsidiaries), accountants or other agents, "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse solicit or knowingly encourage or knowingly facilitate the submission or announcement (including by way of furnishing information) any Acquisition Proposal or Acquisition Inquiry or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person as defined in connection withSection 5.5(d)), or in response to, an Acquisition Proposal enter into or Acquisition Inquiry, (C) engage in maintain or continue discussions or negotiations with any Person person in furtherance of, furnish any information to any other person with respect to any Acquisition Proposal or Acquisition Inquiryto, or (D) approve, recommend agree to, endorse or enter intorecommend, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing in each this Agreement shall prohibit the Board of Directors of Company, prior to the consummation of the foregoing clauses Merger, from furnishing the same information as was previously furnished to Parent (A)-(D)as revised or updated to reflect any changes or additions to such information if such revised information is contemporaneously furnished to Parent) to, in the event a Third Party submits or entering into, maintaining or continuing discussions or negotiations with, any person that makes an unsolicited bona fide written Acquisition Proposal after the date hereof under circumstances not involving any breach of the provisions of this Section 5.5(a) if, and to the extent that, (i) the Board of Directors of Company, after consultation with and based upon the Stockholder advice of independent legal counsel, reasonably determines in good faith that the failure to take such action would be reasonably likely to constitute a breach by the Board of Directors of Company of its fiduciary duties to Company’s stockholders under applicable law, (ii) the Board of Directors of Company, after consultation with and based upon the advice of its financial advisor, reasonably determines in good faith that the Acquisition Proposal is a Superior Proposal, and (iii) prior to furnishing any non-public information to such person, Company receives from such person an executed confidentiality agreement with provisions no less favorable to Company than the Confidentiality Agreement. Company shall promptly (and, in any event within 24 hours) notify Parent after receipt of any Acquisition Proposal or any request for information relating to Company or any of its Representatives Subsidiaries or for access to the properties, books or records of Company or any of its Subsidiaries by any person who has informed Company that such person is considering making, or has made, an Acquisition Proposal (which notice shall not be prohibited from participating in any discussions identify the person making, or negotiations with respect to a possible tender and supportconsidering making, voting or similar agreement in connection with such Acquisition Proposal if and only ifshall set forth the material terms of any Acquisition Proposal received), and following Company shall keep Parent informed in reasonable detail of the Company’s receipt terms, status and other pertinent details of any such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that Neither the Board of Directors of Company nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval of this Agreement limits or the rights transactions contemplated hereby or the recommendations referred to in Section 1.7 or the penultimate sentence of Stockholder only Section 5.1(a), (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal; provided, however, that nothing contained in this Agreement will prohibit the Board of Directors of Company from, prior to the consummation of the Merger, taking any of the actions set forth in clauses (i) or (ii) above following the receipt by Company of an unsolicited bona fide written Acquisition Proposal after the date hereof under circumstances not involving any breach of the provisions of Section 5.5(a) if, and to the extent that Stockholder is acting in Stockholder's capacity as a stockholder that, (i) the Board of the Directors of Company, after consultation with and nothing herein shall based upon the advice of independent legal counsel, reasonably determines in good faith that the failure to take such action would be construed as preventing Stockholder acting in reasonably likely to constitute a breach by the Board of Directors of Company of its capacity as an officer or director fiduciary duties to Company’s stockholders under applicable law, (ii) the Board of the Directors of Company, or as after consultation with and based upon the advice of its financial advisor, determines in good faith that the Acquisition Proposal is a trustee or fiduciary Superior Proposal and (iii) (x) at least three business days have elapsed following the delivery to Parent of any employee benefit plan or trust, from fulfilling the obligations a written notice of such office determinations by the Board of Directors of Company and (including, subject 1) Company has delivered to Parent the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations written notice required by the fiduciary obligations last sentence of Stockholder acting solely Section 5.5(a) and (2) during such three business day period, Company shall provide Parent the opportunity to make a counter-proposal to such Superior Proposal and shall consider in its capacity good faith the terms of such counter-proposal and engage in good faith negotiations regarding such counter-proposal so as an officer or directorwould enable Parent to proceed with the Merger on such adjusted terms and (y) at the end of such three business day period the Board of Directors of Company continues reasonably to believe that the Acquisition Proposal constitutes a Superior Proposal.
(c) Nothing in this Section 5.5, trustee or fiduciary) and no action taken solely by the Board of Directors of Company pursuant to this Section 5.5, will (i) permit Company to enter into any agreement providing for any transaction contemplated by an Acquisition Proposal for as long as this Agreement remains in effect or (ii) affect in any such capacity as an officer or director manner any other obligation of Company under this Agreement. Nothing in this Section 5.5 shall prohibit the Company shall be deemed or its Board of Directors from taking and disclosing to constitute its stockholders a breach position in which it rejects a third-party tender offer and the reason therefor pursuant to Rules 14d-9 and 14e2(a) promulgated under the Exchange Act.
(d) For purposes of this Agreement, “Acquisition Proposal” means an inquiry, offer, proposal or other indication of interest regarding any of the following (other than the transactions provided for in this Agreement or the Stockholder Agreements involving Company or any of its Subsidiaries: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of Company and its Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) any purchase of or tender offer or exchange offer for or other acquisition of 20% percent or more of the outstanding shares of capital stock of Company or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. For purposes of this Agreement, “Superior Proposal” means an Acquisition Proposal involving at least two-thirds of the shares of capital stock or all or substantially all of the assets of Company that the Board of Directors of Company determines, after consulting with Company’s financial advisors and independent legal counsel, to be more favorable to Company’s stockholders than the Merger (after considering any adjustment to the terms and conditions of the Merger in response to an Acquisition Proposal) and is reasonably likely of being completed.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder Company shall -------------------------------------- not, and nor shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause it permit any of its other Affiliates Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or Persons acting on its employee of, or their behalf (including employeesany investment banker, investment bankers, attorneys, accountants attorney or other agentsadvisor or representative of, "Representatives"Company or any of its Subsidiaries to, (i) not tosolicit or initiate, or encourage, directly or indirectly, any inquiries relating to, or the submission of, any Acquisition Proposal, (Aii) solicitparticipate in any discussions or negotiations regarding any Acquisition Proposal, initiateor in connection with any Acquisition Proposal, endorse or knowingly encourage furnish to any Person any information or data with respect to or access to the properties of Company or any of its Subsidiaries, or take any other action to knowingly facilitate the submission or announcement making of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an any Acquisition Proposal or Acquisition Inquiry, (Ciii) engage in discussions or negotiations with enter into any Person agreement with respect to any Acquisition Proposal or Acquisition Inquiry, approve or (D) approve, recommend or enter into, resolve to approve any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, howeverthat nothing -------- ---- contained in this Section 6.5 or any other provision hereof shall prohibit Company or Company's Board of Directors from (i) taking and disclosing to Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, that in each of the foregoing clauses or (A)-(D)ii) making such disclosure to Company's stockholders as, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal good faith judgment of Company's Board of Directors, after consultation with outside counsel, is required under, or is necessary to comply with, applicable law, provided that Company may not, except as permitted by Section 6.5(b), withdraw -------- ---- or modify, or propose to withdraw or modify, its position with respect to the CompanyOffer or the Merger or approve or recommend, the Stockholder or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of its Representatives shall not be prohibited from participating in this Agreement, Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to a possible tender any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Shares for payment pursuant to the Offer, Company may furnish information concerning its business or its Subsidiaries, properties or assets to any person or group and support, voting or similar agreement may negotiate and participate in connection discussions and negotiations with such Acquisition Proposal if and only if, and following the Company’s receipt of such person or group concerning an Acquisition Proposal, provided that such person or group shall have entered into a confidentiality agreement, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response confidentiality provisions of which shall be no more favorable to such Acquisition Proposal pursuant to and third party than those provided for in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Letter Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.if:
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder The Company shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause authorize or permit any of its other Affiliates officers, directors or Persons acting on its employees or their behalf (including employeesany investment banker, investment bankersfinancial advisor, attorneys, accountants accountant or other agents, "Representatives") not representative retained by it to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage (including by way of furnishing non-public information), or take any other action to knowingly facilitate any inquiries or the submission or announcement making of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal (as such term is defined herein) or Acquisition Inquiry, (Cii) engage participate in any discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or a Third Party (Das such term is defined herein) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to regarding an Acquisition Proposal; provided, however, that in each if, at any time prior to the Effective Time, the Board of Directors of the foregoing clauses Company or the Special Committee of the Board of Directors of the Company determines in good faith, (A)-(Di) after consulting with outside counsel, that it is likely to have a fiduciary duty to do so under applicable law, and (ii) based on the advice of outside counsel and the Financial Advisor, that the initiating Third Party is a credible potential buyer reasonably likely to have the ability to consummate a Superior Proposal (as such term is defined herein), the Company, in the event response to a written Acquisition Proposal that was unsolicited from a Third Party submits an unsolicited bona fide written Acquisition Proposal or that did not otherwise result from a breach of this Section 5.7, and is reasonably likely to the Companylead to a Superior Proposal, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations may (x) furnish non-public information with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that to the Company and its representatives may engage in such discussions or negotiations in response to Third Party who made such Acquisition Proposal pursuant to and a confidentiality agreement in accordance with substantially the terms form of Section 6.2(a) of the Merger Agreement. Stockholder shallEXHIBIT B attached hereto, and shall cause its Representatives to(y) participate in negotiations regarding such Acquisition Proposal. Without limiting the foregoing, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It it is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder any violation of the Company, and nothing herein shall be construed as preventing Stockholder acting restrictions set forth in its capacity as an the preceding sentence by any director or officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company or any of its Subsidiaries, other than Affiliates or Associates of the Purchaser, or any investment banker, financial advisor, attorney, accountant or other representative of the Company or any of its Subsidiaries, whether or not acting on behalf of the Company or any of its Subsidiaries, shall be deemed to constitute be a breach of this AgreementSection 5.7 by the Company.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder Except as otherwise provided in this Section 14.2, from the Effective Date until the Closing or earlier termination of this Agreement, Parent shall not, and shall cause each of its controlled Affiliates, subsidiaries and its and their respective officers and directors (if applicable) not to, and will instruct shall not authorize and shall use commercially reasonable best efforts to cause any other Representatives of Parent or any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") subsidiaries not to, directly or indirectly, (Ai) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission any inquiry, proposal or announcement of offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal (an "Inquiry"), (ii) enter into, continue or otherwise participate or engage in any negotiations or discussions regarding, or furnish to any Person other than Buyer or its Representatives any non-public information or data in furtherance of, any Acquisition Proposal or Inquiry, (iii) approve, recommend, declare advisable or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share exchange agreement, consolidation agreement, option agreement, joint venture agreement, partnership agreement or other agreement, in each case related to an Acquisition Inquiry Proposal (other than an Acceptable Confidentiality Agreement), or requiring or having the effect of requiring Parent to abandon, terminate or breach its obligations hereunder or fail to consummate the transactions contemplated hereby (each item referred to in this clause (iii), a "Alternative Acquisition Agreement"), or (iv) agree to or propose publicly to do any of the foregoing. Parent shall, and shall cause each of its subsidiaries to, and shall direct the Representatives of Parent and its subsidiaries to, (A) immediately cease and cause to be terminated all existing discussions and negotiations with any Person and its Representatives (other than Buyer or any proposals of its Representatives) conducted heretofore with respect to any Acquisition Proposal, and (B) not terminate, amend, release or offers modify any provision of any standstill agreement (including any standstill provisions contained in any confidentiality or other agreement) to which it or any of its Affiliates or Representatives is a party.
(b) Notwithstanding anything herein to the contrary, but subject to Parent's compliance with this Section 14.2, if, at any time following the Effective Date and prior to obtaining the Shareholder Approval, (i) Parent receives an unsolicited written Acquisition Proposal that constitute the Parent Board believes in good faith to be bona fide, (ii) such Acquisition Proposal was not the result of a violation of Section 14.2(a), and (iii) the Parent Board determines in good faith (after consultation with outside legal counsel and its financial advisor) that such Acquisition Proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal, then Parent may (and may authorize its Representatives to) (x) furnish non-public information with respect to Parent and its subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have previously been provided to Buyer or shall be provided to Buyer as soon as reasonably practicable (and in any event within 24 hours of the time it is provided to such Person), and (y) participate in negotiations with the Person making such Acquisition Proposal (and such Person's Representatives) regarding such Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, Parent and its Representatives may correspond in writing with any Person submitting an Acquisition Proposal (that was not the result of a violation of Section 14.2(a)) to request clarification of the terms of an Acquisition Proposal so as to determine whether such Acquisition Proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal.
(c) Except as provided in Section 14.2(d), the Parent Board (i)(A) shall not fail to make and shall not withdraw (or modify or qualify in any manner adverse to Buyer or publicly propose to withdraw, modify or qualify in any manner adverse to Buyer) the Parent Board Recommendation, (B) furnish shall not adopt, approve, recommend, endorse or disclose otherwise declare advisable any information regarding the Company Acquisition Proposal or proposal reasonably likely to any Person in connection with, or in response to, lead to an Acquisition Proposal (or Acquisition Inquirypublicly propose or resolve to do any of the foregoing), (C) engage shall not fail to include the Parent Board Recommendation in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquirythe Proxy Statement, or (D) approvetake any action or make any recommendation or public statement in connection with a tender offer or exchange offer other than an unequivocal recommendation against such offer or a temporary “stop, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each look and listen” communication by the Parent Board of the foregoing clauses type contemplated by Rule 14d-9(f) under the Exchange Act in which the Parent Board or the Parent indicates that the Parent Board has not changed the Parent Board Recommendation or (A)-(DE) fail to reaffirm the Parent Board Recommendation within the earlier of three (3) Business Days prior to the Shareholders Meeting and five (5) Business Days after receiving a written request to do so from Buyer (each such action set forth in this Section 14.2(c)(i) being referred to herein as an "Adverse Recommendation Change"), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Companyand (ii) shall not authorize, the Stockholder cause or permit Parent or any of its Representatives shall not be prohibited from participating in subsidiaries to enter into any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Alternative Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person Agreement relating to any Acquisition Proposal or Acquisition Inquiry(other than an Acceptable Confidentiality Agreement pursuant to Section 14.2(a)).
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder Seller shall not, and shall cause each of its controlled Affiliates, Affiliates and its and their respective officers and directors (if applicable) Representatives not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage any inquiries or knowingly facilitate the submission or announcement making of any Acquisition Proposal offer or Acquisition Inquiry proposal regarding any Alternative Transaction or (ii) enter into, continue or participate in any proposals discussions or offers that constitute negotiations regarding, or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person any nonpublic information relating to the Biologics SBU, the Products or Seller in connection with, or otherwise cooperate with a Person or group making any offer or proposal regarding any Alternative Transaction or (iii) execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar contract constituting, providing for or related to any Alternative Transaction other than in connection with the termination of this Agreement as provided for in Section 10.1(b)(ii).
(b) If, notwithstanding the provisions of Section 6.6(a), Seller shall have received a bona fide inquiry, proposal or offer relating to any Alternative Transaction received after the Execution Date, and such bona fide inquiry, proposal or offer was unsolicited after the Execution Date, then, in response tothereto, an Acquisition Proposal Seller may furnish information relating to the Biologics SBU or Acquisition InquirySeller (so long as all such information has previously been made available to Buyer or is made available to Buyer prior to or concurrently with the time it is made available to such Person or group), (C) engage in or enter into discussions or negotiations with any with, the Person with respect to any Acquisition Proposal or Acquisition Inquirygroup that has made such unsolicited bona fide inquiry, proposal or offer (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposalthe “Potential Acquirer”); provided, however, that in each of the foregoing clauses following conditions are met: (A)-(D), i) such Person or group first executes a confidentiality agreement substantially in the event a Third Party submits an form of, and with terms no less favorable to Seller than, the Confidentiality Agreement, (ii) Seller has theretofore complied with this Section 6.6 in all respects, (iii) the board of directors of Seller determines in good faith (after consultation with Seller’s outside financial advisor and outside counsel) that such unsolicited bona fide inquiry, proposal or offer constitutes or is reasonably likely to lead to a Superior Transaction and (iv) Seller has provided Buyer with prior written Acquisition Proposal to the Companynotice, the Stockholder (A) that any information has been requested or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect have been sought to a possible tender and supportbe initiated relating to an Alternative Transaction, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a(B) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder identity of the Company, Potential Acquirer and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations other terms of such office request, inquiry or Alternative Transaction (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciarywhich notice shall include any written materials containing such communication) and no action taken solely in (C) of its intent to take any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreementaction.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder Each of the Sellers shall not, and shall cause each of its controlled Affiliates, and its and their procure that neither the respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause Seller nor the Company or any of its other directors, officers, employees or Affiliates or Persons acting on its or their behalf (including employeesany investment banker, investment bankers, attorneys, accountants attorney or other agentsadvisor or representative retained by any of them (collectively, the "RepresentativesCOMPANY REPRESENTATIVES") not toshall, directly or indirectly, : (Ai) solicit, solicit or initiate, endorse or knowingly encourage or knowingly facilitate induce the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any proposals or offers that constitute or would reasonably be expected other action intended to lead to an Acquisition Proposal; (ii) respond to any inquiry, offer or proposal concerning any Acquisition Proposal (Bother than to respond to such inquiry, offer or proposal by indicating that the Company is not interested in any Acquisition Proposal); (iii) furnish or disclose any information regarding the Company to any Person in connection with, with or in response toto any inquiry, an offer or proposal concerning any Acquisition Proposal (other than to respond to such inquiry, offer or proposal by indicating that Company is not interested in any Acquisition Inquiry, Proposal); (Civ) engage participate in any discussions or negotiations with regarding, or furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of, any Acquisition Proposal Proposal; (v) cooperate with, facilitate or encourage any effort or attempt by any Person to effect any Acquisition InquiryProposal; (vi) withhold, withdraw or modify (Dor publicly propose or announce any intention or desire to withhold, withdraw or modify), in a manner adverse to Buyer, the approval of the Supervisory Board of Company of this Agreement and/or any of the transactions contemplated hereby, (vii) approve, endorse or recommend any Acquisition Proposal; (viii) execute, enter into or enter into, become bound by any letter of intent or similar document, agreement document or commitment, any Contract contemplating or agreement in principle (whether written or oral, binding or nonbinding) with respect otherwise relating to an any Acquisition Proposal; providedor (ix) take any action or position that is inconsistent with, however, that in each of the foregoing clauses or withdraw or modify (A)-(Dor publicly propose or announce any intention or desire to withdraw or modify), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal manner adverse to Buyer, the Company, 's support of the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender Share Purchase. The Sellers will and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines will procure that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, will immediately cease and cause to be terminated any and all existing solicitation ofactivities, or discussions or negotiations withnegotiations, if any, with any Person relating parties conducted heretofore with respect to any Acquisition Proposal or Acquisition Inquiry.
(b) It Proposal. Without limiting the foregoing, it is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder any violation of the Company, and nothing herein shall be construed as preventing Stockholder acting restrictions set forth in its capacity as an officer or director of the Company, or as a trustee or fiduciary of this Section 5.4 by any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall Representative will be deemed to constitute be a breach of this AgreementSection 5.4 by the Sellers. The Sellers will advise Buyer, as soon as reasonably practicable (and in no event more than two business days thereafter), orally and in writing, of (i) any Acquisition Proposal, any request for nonpublic information which the Sellers reasonably believe could lead to an Acquisition Proposal or any inquiry with respect to or which the Sellers reasonably believe could lead to an Acquisition Proposal, (ii) the material terms (including price) and conditions of such Acquisition Proposal, request or inquiry, and (iii) the identity of the Person or group making any such Acquisition Proposal, request or inquiry.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, (1) the Company shall, and the Company shall cause its and its subsidiaries' respective Representatives to, immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Third Party conducted heretofore by the Company, its subsidiaries or their respective Representatives with respect to any Acquisition Proposal and (2) the Company shall not, and the Company shall cause each of its controlled Affiliates, and its and their subsidiaries' respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") Representatives not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage (including by way of furnishing information), or knowingly facilitate take any other action to facilitate, any inquiries or the making or submission or announcement of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to an to, any Acquisition Proposal; (ii) enter into any agreement, (B) furnish arrangement or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person understanding with respect to any Acquisition Proposal or Acquisition Inquiryenter into any agreement, arrangement or understanding requiring the Company to abandon, terminate or fail to consummate the exchange of Company Shares pursuant to the Offer or the Merger or any other transaction contemplated by this Agreement; (iii) participate or engage in any discussions or negotiations with, or disclose or provide any non-public information or data relating to the Company or its subsidiaries or afford access to the properties, books or records or employees of the Company or its subsidiaries to, any Third Party relating to an Acquisition Proposal, or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; or (Div) approve, recommend or enter into, into any letter of intent or similar documentdocument or any contract, agreement or commitment, commitment contemplating or agreement in principle (whether written or oral, binding or nonbinding) with respect otherwise relating to an any Acquisition Proposal; provided, however, that .
(b) Notwithstanding the restrictions set forth in each of the foregoing clauses (A)-(DSection 6.4(a), in if, at any time prior to the event a Third Party submits exchange of Company Shares pursuant to the Offer, (1) the Company has received an unsolicited bona fide written proposal from a Third Party relating to an Acquisition Proposal (under circumstances in which the Company has complied with its obligations under Section 6.4(a)) and (2) the Board of Directors of the Company concludes in good faith (after consultation with a financial advisor of nationally recognized reputation and after receiving the written advice of its outside counsel) (i) that such Acquisition Proposal constitutes a Superior Proposal and (ii) that the failure to provide such information or participate in such negotiations or discussions would result in a breach by the Board of Directors of the Company of its fiduciary duties to the Company's Shareholders under applicable Law, the Stockholder Company may, subject to its giving Parent at least two business days' prior written notice of the identity of such Third Party and all of the terms and conditions of such Acquisition Proposal and of the Company's intention to furnish nonpublic information to, or any of its Representatives shall not be prohibited from participating in any enter into discussions or negotiations with, such Third Party, (x) furnish information with respect to the Company and its subsidiaries to any Third Party pursuant to a possible tender customary confidentiality agreement containing terms no less restrictive than the terms of the Confidentiality Agreement dated March 7, 2001, entered into between Morgan Keegan & Company, on behalf of the Company, and supportOvernite Trxxxxxxxxxxxx Company, voting as the same may be amended, supplemented or similar agreement modified (the "Confidentiality Agreement"), provided that a copy of all such information is delivered simultaneously to Parent if it has not previously been so furnished to Parent, and (y) participate in connection with discussions or negotiations regarding such proposal.
(c) The Company shall as soon as practicable (and in any event within 24 hours) notify and advise Parent orally and in writing of any Acquisition Proposal if or of any request for information or inquiry that may lead to an Acquisition Proposal, the terms and only if, and following the Company’s receipt conditions of such Acquisition Proposal, request or inquiry, and the identity of the person making such Acquisition Proposal, request or inquiry. The Company shall inform Parent on a prompt and current basis of the status, content and details of any discussions regarding, or relating to, any Acquisition Proposal with a Third Party (including amendments and proposed amendments) and, as promptly as practicable, of any change in the price, structure or form of the consideration or material terms of and conditions regarding the Acquisition Proposal. In fulfilling its obligations under this paragraph (c) of this Section 6.4, the Company Board determines that shall provide promptly to Parent copies of all written correspondence or other written material, including material in electronic form, between the Company and its representatives may engage such Third Party, except in the event where the delivery of such discussions or negotiations copies would result in response to such Acquisition Proposal pursuant to and in accordance with a breach by the terms Board of Section 6.2(a) Directors of the Merger Agreement. Stockholder shall, and shall cause Company of its Representatives to, immediately cease and cause fiduciary duties to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquirythe Company's Shareholders under applicable Law.
(bd) It is understood The Company agrees that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder it will promptly inform its and its subsidiaries' respective Representatives of the Company, and nothing herein shall be construed as preventing Stockholder acting obligations undertaken in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office this Section 6.4.
(including, subject to the limitation e) Nothing contained in this Section 6.2 of 6.4 or Section 6.5 hereof shall prohibit the Merger Agreement, the performance of obligations Company from taking and disclosing to its shareholders a position as required by Rule 14d-9 or Rule 14e-2(a) promulgated under the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciaryExchange Act.
(f) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach For purposes of this Agreement.,
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder Company shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause authorize or permit any of its other Affiliates Subsidiaries, or Persons acting on any of its or their behalf affiliates, officers, directors, employees, agents or representatives (including employeeswithout limitation any investment banker, investment bankersfinancial advisor, attorneysattorney or accountant retained by Company or any of its Subsidiaries), accountants or other agents, "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse solicit or knowingly encourage or knowingly facilitate the submission or announcement (including by way of furnishing information) any Acquisition Proposal or Acquisition Inquiry or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person as defined in connection withSection 5.5(d)), or in response to, an Acquisition Proposal enter into or Acquisition Inquiry, (C) engage in maintain or continue discussions or negotiations with any Person person in furtherance of, furnish any information to any other person with respect to any Acquisition Proposal or Acquisition Inquiryto, or (D) approve, recommend agree to, endorse or enter intorecommend, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing in each this Agreement shall prohibit the Board of Directors of Company, prior to the consummation of the foregoing clauses Merger, from furnishing the same information as was previously furnished to Parent (A)-(D)as revised or updated to reflect any changes or additions to such information if such revised information is contemporaneously furnished to Parent) to, in the event a Third Party submits or entering into, maintaining or continuing discussions or negotiations with, any person that makes an unsolicited bona fide written Acquisition Proposal after the date hereof under circumstances not involving any breach of the provisions of this Section 5.5(a) if, and to the extent that, (i) the Board of Directors of Company, after consultation with and based upon the Stockholder advice of independent legal counsel, reasonably determines in good faith that the failure to take such action would be reasonably likely to constitute a breach by the Board of Directors of Company of its fiduciary duties to Company's stockholders under applicable law, (ii) the Board of Directors of Company, after consultation with and based upon the advice of its financial advisor, reasonably determines in good faith that the Acquisition Proposal is a Superior Proposal, and (iii) prior to furnishing any non-public information to such person, Company receives from such person an executed confidentiality agreement with provisions no less favorable to Company than the Confidentiality Agreement. Company shall promptly (and, in any event within 24 hours) notify Parent after receipt of any Acquisition Proposal or any request for information relating to Company or any of its Representatives Subsidiaries or for access to the properties, books or records of Company or any of its Subsidiaries by any person who has informed Company that such person is considering making, or has made, an Acquisition Proposal (which notice shall not be prohibited from participating in any discussions identify the person making, or negotiations with respect to a possible tender and supportconsidering making, voting or similar agreement in connection with such Acquisition Proposal if and only ifshall set forth the material terms of any Acquisition Proposal received), and following Company shall keep Parent informed in reasonable detail of the Company’s receipt terms, status and other pertinent details of any such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that Neither the Board of Directors of Company nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval of this Agreement limits or the rights transactions contemplated hereby or the recommendations referred to in Section 1.7 or the penultimate sentence of Stockholder only Section 5.1(a), (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal; provided, however, that nothing contained in this Agreement will prohibit the Board of Directors of Company from, prior to the consummation of the Merger, taking any of the actions set forth in clauses (i) or (ii) above following the receipt by Company of an unsolicited bona fide written Acquisition Proposal after the date hereof under circumstances not involving any breach of the provisions of Section 5.5(a) if, and to the extent that Stockholder is acting in Stockholder's capacity as a stockholder that, (i) the Board of the Directors of Company, after consultation with and nothing herein shall based upon the advice of independent legal counsel, reasonably determines in good faith that the failure to take such action would be construed as preventing Stockholder acting in reasonably likely to constitute a breach by the Board of Directors of Company of its capacity as an officer or director fiduciary duties to Company's stockholders under applicable law, (ii) the Board of the Directors of Company, or as after consultation with and based upon the advice of its financial advisor, determines in good faith that the Acquisition Proposal is a trustee or fiduciary Superior Proposal and (iii) (x) at least three business days have elapsed following the delivery to Parent of any employee benefit plan or trust, from fulfilling the obligations a written notice of such office determinations by the Board of Directors of Company and (including, subject 1) Company has delivered to Parent the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations written notice required by the fiduciary obligations last sentence of Stockholder acting solely Section 5.5(a) and (2) during such three business day period, Company shall provide Parent the opportunity to make a counter-proposal to such Superior Proposal and shall consider in its capacity good faith the terms of such counter-proposal and engage in good faith negotiations regarding such counter-proposal so as an officer or directorwould enable Parent to proceed with the Merger on such adjusted terms and (y) at the end of such three business day period the Board of Directors of Company continues reasonably to believe that the Acquisition Proposal constitutes a Superior Proposal.
(c) Nothing in this Section 5.5, trustee or fiduciary) and no action taken solely by the Board of Directors of Company pursuant to this Section 5.5, will (i) permit Company to enter into any agreement providing for any transaction contemplated by an Acquisition Proposal for as long as this Agreement remains in effect or (ii) affect in any such capacity as an officer or director manner any other obligation of Company under this Agreement. Nothing in this Section 5.5 shall prohibit the Company shall be deemed or its Board of Directors from taking and disclosing to constitute its stockholders a breach position in which it rejects a third-party tender offer and the reason therefor pursuant to Rules 14d-9 and 14e2(a) promulgated under the Exchange Act.
(d) For purposes of this Agreement, "ACQUISITION PROPOSAL" means an inquiry, offer, proposal or other indication of interest regarding any of the following (other than the transactions provided for in this Agreement or the Stockholder Agreements involving Company or any of its Subsidiaries: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of Company and its Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) any purchase of or tender offer or exchange offer for or other acquisition of 20% percent or more of the outstanding shares of capital stock of Company or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. For purposes of this Agreement, "SUPERIOR PROPOSAL" means an Acquisition Proposal involving at least two-thirds of the shares of capital stock or all or substantially all of the assets of Company that the Board of Directors of Company determines, after consulting with Company's financial advisors and independent legal counsel, to be more favorable to Company's stockholders than the Merger (after considering any adjustment to the terms and conditions of the Merger in response to an Acquisition Proposal) and is reasonably likely of being completed.
Appears in 1 contract
Samples: Merger Agreement (Elekta AB)
No Solicitation; Acquisition Proposals. (a) Stockholder Except as otherwise provided in this Agreement, from and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, none of the Company or its Subsidiaries shall, nor shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause the Company authorize or permit any of its other Affiliates or Persons acting on its or their behalf (including respective officers, directors, employees, investment bankersrepresentatives or advisors (such individuals, attorneys, accountants or other agents, "the “Representatives"”) not to, directly or indirectly, : (Ai) solicit, initiate, endorse initiate or knowingly encourage or knowingly facilitate facilitate, or cooperate with respect to, the preparation or submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any inquiries, proposals or offers from any Person (other than Parent) that constitute constitutes, or would reasonably be expected to lead to, an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions, communications or negotiations in connection with any Acquisition Proposal or furnish to an any Person any non-public information with respect to its or any of its Subsidiaries’ business, properties or assets in connection with any Acquisition Proposal. From and after the date of this Agreement, the Company and its Subsidiaries shall, and shall cause their respective Representatives to, (A) immediately cease and terminate, any and all existing activities, discussions, communications or negotiations with any parties (other than Parent, Merger Sub or any of any of their respective Representatives) conducted heretofore with respect to any Acquisition Proposal, (B) furnish take such action as is necessary to enforce any confidentiality provisions or disclose provisions of similar effect to which the Company or any information regarding of its Subsidiaries is a party or of which the Company or any of its Subsidiaries is a beneficiary and (C) not terminate, waive, amend, release or modify any provision of any standstill agreement (including any standstill provision contained in any confidentiality or other agreement) to which it or any of its Affiliates or Representatives is a party, unless, solely, with respect to this clause (C), the Board of Directors of the Company has determined in good faith, after consultation with its financial advisors and outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Law. The Company shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Person in connection withAcquisition Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, or in response to, documents and materials relating to an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, its Subsidiaries or its businesses, operations or affairs heretofore furnished by or on behalf of the Stockholder Company or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person and terminate any “data room” or similar access of such Persons and their Representatives. For purposes of this Section 6.2(a7.4, the term “Person” means any person, corporation, entity or “group,” as defined in Section 13(d) of the Merger Agreement. Stockholder shallExchange Act, and shall cause its Representatives toother than, immediately cease and cause with respect to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer Parent or director any Subsidiaries of Parent and, with respect to Parent, the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Medassets Inc)
No Solicitation; Acquisition Proposals. Upon execution of this Agreement until the Closing Date or until this Agreement is terminated as provided in Article 8, Seller will not directly or indirectly (ai) Stockholder shall notsolicit or initiate (including by way of furnishing any information) discussions with or (ii) enter into negotiations or agreements with, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not or furnish any information to, any corporation, partnership, person or other entity or group (other than Buyer, an affiliate of Buyer or its authorized representatives pursuant to this Agreement) concerning any proposal for a merger, sale of substantial assets or other takeover or business combination transaction, which, if consummated, would prevent Seller from consummating the purchase and sale contemplated hereby (an "Acquisition Transaction"); and Seller will instruct its officers, directors, advisors and use commercially reasonable efforts other financial and legal representatives and consultants not to cause take any action contrary to the foregoing provisions of its other Affiliates this sentence. Seller will notify Buyer promptly in writing if Seller becomes aware that any inquiries or Persons acting on its or their behalf (including employeesproposals are received by, investment bankersany information is requested from, attorneys, accountants or other agents, "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any proposals negotiations or offers that constitute or would reasonably discussions are sought to be expected to lead initiated with Seller with respect to an Acquisition ProposalTransaction and will immediately after receipt provide to Buyer a copy of any letter, (B) furnish proposal or disclose other document in which any information regarding the Company to any Person in connection with, or in response to, proposal for an Acquisition Proposal Transaction is made or Acquisition Inquiryexpressed. Seller will immediately cease any existing activities, (C) engage in discussions or negotiations with any Person with respect third parties which may have been conducted on or prior to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) the date hereof with respect to an Acquisition Proposal; provided, however, that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, Transaction and shall direct and use reasonable efforts to cause its Representatives toofficers, immediately cease advisors and cause representatives not to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely engage in any such capacity as an officer activities, discussions or director of the Company shall be deemed to constitute a breach of this Agreementnegotiations.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not toThe Seller Parties have ceased all, and will instruct and not engage in any, discussions and/or negotiations with any Person directly or indirectly relating to the sale or other disposition of all or a portion of the Shares, or the voting thereof (an “Alternate Transaction”) or otherwise participate in any furnishing to any other Person any information with respect to, or otherwise cooperate in any way with or assist in, facilitate or encourage, any effort or attempt by any other Person to do or seek to do any of the foregoing. The Seller Parties will not directly or indirectly through any officer, director, employer, representative, agent, financial advisor or otherwise, solicit, initiate or encourage inquiries or proposals or offers from any Person regarding an Alternate Transaction.
(b) The Seller Parties will use commercially reasonable efforts to cause any OpenTV and each of its other Affiliates or Persons acting on its or their behalf (including employeesSubsidiaries to cease any ongoing, investment bankersand not initiate any new, attorneys, accountants or other agents, "Representatives") not toactivities, directly or indirectly, (A) through any officer, director, employee, representative, agent, financial advisor or otherwise, to solicit, initiate, endorse initiate or knowingly encourage inquiries or knowingly facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any proposals or offers that constitute from any Person relating to (i) any sale or would reasonably be expected other disposition of all or substantially all of the assets of OpenTV or its Subsidiaries or all or substantially all of the equity interests in OpenTV or its Subsidiaries or (ii) any business combination involving OpenTV or any of its Subsidiaries, whether by merger, consolidation, tender offer or otherwise (any of the foregoing, an “Extraordinary Transaction”) or to lead participate in any negotiation regarding, or furnishing to an Acquisition Proposal, (B) furnish or disclose any other Person any information regarding the Company to any Person in connection withwith respect to, or otherwise cooperate in response toany way with or assist in, an Acquisition Proposal facilitate or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter intoencourage, any letter effort or attempt by any other Person to do or seek to do any of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposalthe foregoing; provided, however, that nothing in each Section 4.2(a) or this Section 4.2(b) shall prohibit (or require a Seller Party to prohibit) any director of OpenTV, including a Seller Party Representative, from exercising (solely in his or her capacity as a director of OpenTV) fiduciary duties to OpenTV or its shareholders (other than the Seller Parties) under applicable Law; provided further, that nothing in the immediately preceding proviso shall relieve or be deemed to release the Seller Parties from any obligations hereunder that can be performed without causing a Seller Party Representative to violate such fiduciary duties. For the avoidance of doubt, no acquisition or disposition of assets by OpenTV or its Subsidiaries that would be permitted without the consent of the foregoing clauses Purchaser pursuant to Section 4.1 shall constitute an Extraordinary Transaction.
(A)-(D), in c) The Seller Parties will vote all voting shares of OpenTV or of any other Person held by any of the event a Third Party submits an unsolicited bona fide written Acquisition Proposal Seller Parties and their respective Controlled Affiliates against any Extraordinary Transaction or Alternate Transaction that is presented or proposed to them at any time after the date of this Agreement and prior to the CompanyClosing or termination of this Agreement. The Seller Parties will notify Kudelski promptly if any inquiries or proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, the Stockholder Seller Parties or, to the knowledge of the Seller Parties, OpenTV or any of its Representatives shall not be prohibited from participating Subsidiaries, in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement each case in connection with any Extraordinary Transaction or Alternate Transaction; provided, however, that nothing in this Section 4.2(c) shall require a Seller Party to notify Kudelski of any information the disclosure of which would be prohibited by the fiduciary duties of any director of OpenTV, including a Seller Party Representative, to OpenTV or its shareholders (other than the Seller Parties); provided, further, that nothing in the immediately preceding proviso shall relieve or be deemed to release the Seller Parties from any obligations hereunder that can be performed without causing a Seller Party Representative to violate such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiryfiduciary duties.
(bd) It The Seller Parties will use commercially reasonable efforts to cause OpenTV to promptly (i) notify the Purchaser if any inquiries or proposals are received by, any non-public information is understood that this Agreement limits requested from, or any negotiations or discussions are sought to be initiated or continued with, OpenTV or any Subsidiary of OpenTV, in each case in connection with any Extraordinary Transaction or Alternate Transaction, (ii) give Kudelski written notice of the rights identity of Stockholder only the Person making such inquiries, proposals or requests and of OpenTV’s intention to furnish any nonpublic information to such Person and (iii) to make available to the Kudelski any nonpublic information it intends to furnish to such Person to the extent not previously made available to Kudelski; provided, however, that Stockholder is acting nothing in Stockholder's this Section 4.2(d) shall prohibit (or require a Seller Party to prohibit) any director of OpenTV, including a Seller Party Representative, from exercising (solely in his or her capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of OpenTV) fiduciary duties to OpenTV or its shareholders (other than the CompanySeller Parties) under applicable Law; provided further, that nothing in the immediately preceding proviso shall relieve or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to release the Seller Parties from any obligations hereunder that can be performed without causing a Seller Party Representative to violate such fiduciary duties.
(e) For the avoidance of doubt, the sale of the Shares to the Purchasers pursuant to this Agreement shall constitute a breach of this Agreementneither an Alternate Transaction nor an Extraordinary Transaction.
Appears in 1 contract
No Solicitation; Acquisition Proposals. From the date hereof until the first to occur of the Closing or until this Agreement is terminated in accordance with Article XI hereof, Seller shall not, directly or indirectly (a) Stockholder shall notsolicit or initiate (including by way of furnishing any information) discussions with, or (b) enter into negotiations or agreements with, or (c) furnish any information to, any corporation, partnership, person or other entity or group (other than Buyer or its authorized representatives pursuant to this Agreement) concerning any inquiry or proposal for a merger, consolidation, business combination, reorganization, recapitalization, liquidation, dissolution, spin-off transaction, sale of any substantial portion of its assets, sale of shares of stock or securities or other takeover or business combination transaction (an "Acquisition Proposal") involving any part of the Combined Business, Seller JV or the Assets, and shall Seller will instruct and cause each of its controlled officers, directors, employees, agents, Affiliates, and its other financial and their respective officers legal representatives and directors consultants (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agentscollectively, "RepresentativesSeller Agents") not to, directly or indirectly, (A) solicit, initiate, endorse or knowingly encourage or knowingly facilitate to take any action contrary to the submission or announcement foregoing provisions of this sentence. Seller will notify Buyer promptly of any Acquisition Proposal or Acquisition Inquiry proposals (including the terms thereof) that are received by, any information that is requested from, or any proposals negotiations or offers discussions that constitute are sought to be initiated with Seller or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) Seller Agent with respect to an Acquisition Proposal; provided, however, provided that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives Seller shall not be prohibited from participating in have any discussions obligation to disclose the identity of any Person making such a proposal or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreementrequest. Stockholder Seller shall, and shall cause its Representatives each Seller Agent to, immediately cease and cause to be terminated any existing solicitation ofactivities, or discussions or negotiations with, with any Person relating third parties which may have been conducted on or prior to any the date hereof with respect to an Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only and shall direct and cause its officers, advisors and representatives not to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely engage in any such capacity as an officer activities, discussions or director of the Company shall be deemed to constitute a breach of this Agreementnegotiations.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder shall notExcept as expressly permitted by this Section 7.3, neither Cowboy nor Frontier shall, and Cowboy shall cause each of its controlled Affiliatesthe Cowboy Subsidiaries and Frontier shall cause each of the Frontier Subsidiaries not to, and shall instruct and use its reasonable best efforts to cause its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") Representatives not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage or knowingly facilitate any inquiry, proposal or offer with respect to, or the submission announcement, making or announcement of completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person (other than Cowboy, Frontier or their respective Representatives) any non-public information or data in furtherance of, any Acquisition Proposal or Acquisition Inquiry any inquiry, proposal or any proposals or offers offer that constitute or would is reasonably be expected likely to lead to any Acquisition Proposal, (iii) enter into any definitive acquisition agreement, merger agreement, share exchange agreement, consolidation agreement, option agreement, joint venture agreement or partnership agreement (including any letter of intent or agreement in principle) (each, an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to this Section 7.3(a)), (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement or any Takeover Statute or (v) agree, approve, recommend or propose to do any of the foregoing. Each of Frontier and Cowboy shall, and shall cause each of the Frontier Subsidiaries and the Cowboy Subsidiaries, respectively, and shall use its reasonable best efforts to cause its and their Representatives to, (A) immediately cease and cause to be terminated all existing negotiations with any Person and its Representatives (other than the Parties or any of their Representatives) conducted heretofore with respect to any Acquisition Proposal, (B) furnish enforce any confidentiality or disclose standstill or provisions of similar effect to which Frontier or Cowboy, as applicable, or any information regarding the Company of their subsidiaries is a party or of which Frontier or Cowboy, as applicable, or any of their subsidiaries is a beneficiary with regards to any Person in connection withAcquisition Proposal, or in response to, an Acquisition Proposal or Acquisition Inquiry, and (C) engage in discussions request the prompt return or negotiations with destruction, to the extent permitted by any confidentiality agreement, of all non-public information or data previously furnished to any such Person and its Representatives with respect to any Acquisition Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person, its subsidiaries or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) their respective Representatives with respect to any Acquisition Proposal. Notwithstanding the foregoing, if, at any time following the date of this Agreement and prior to obtaining the Frontier Stockholder Approval or the Cowboy Shareholder Approval, as applicable, (1) Frontier or Cowboy, as applicable, receives a written Acquisition Proposal that was not the result of a violation of this Section 7.3(a) and (2) the Frontier Board or the Cowboy Board, as applicable, determines in good faith (after consultation with outside counsel and a financial advisor) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and determines in good faith (after consultation with outside counsel) that its failure to take such action would be inconsistent with its fiduciary duties under applicable Law, then such Party may (and may authorize its Subsidiaries and its Representatives to), after notifying the other Party of such determination, (x) furnish non-public information or data with respect to itself and its subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided, that (i) any non-public information or data provided to any such Person given such access shall have previously been provided to the other Party or shall be provided (to the extent permitted by applicable Law) to the other Party prior to or substantially concurrently with the time it is provided to such Person and (ii) no non-public information or data with respect to the other Party shall be provided to any such Person, and (y) participate in discussions and negotiations with the Person making such Acquisition Proposal (and such Person’s Representatives) regarding such Acquisition Proposal.
(b) Except as provided in Section 7.3(c), neither the Frontier Board nor the Cowboy Board shall (i) fail to make or shall withdraw (or modify or qualify in any manner adverse to the other Party or publicly propose to withdraw, modify or qualify in any manner adverse to the other Party) the Frontier Board Recommendation or the Cowboy Board Recommendation, respectively, or the determination of the advisability to its stockholders of the Merger, the issuance of Frontier Common Stock in the Merger and other transactions contemplated hereby, (ii) adopt, approve, or publicly recommend, endorse or otherwise declare advisable any Acquisition Proposal, (iii) fail to include the Frontier Board Recommendation or the Cowboy Board Recommendation, respectively, in whole or in part in the Joint Proxy Statement or any filing or amendment or supplement relating thereto, (iv) fail to recommend against any then-pending tender or exchange offer that constitutes an Acquisition Proposal within ten (10) Business Days after it is announced or (v) fail, within three (3) Business Days of a request by the other Party following the public announcement of an Acquisition Proposal, to reaffirm the Frontier Board Recommendation or the Cowboy Board Recommendation, as applicable (each such action set forth in this Section 7.3(b) being referred to herein as an “Adverse Recommendation Change”).
(c) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Frontier Stockholder Approval or the Cowboy Shareholder Approval, as applicable, and following the compliance with this Section 7.3(c), the Frontier Board or the Cowboy Board may, if such Board determines in good faith (after consultation with outside counsel) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided, that prior to effecting an Adverse Recommendation Change, (i) Frontier or Cowboy, as applicable, shall notify the other Party in writing, at least five (5) Business Days prior to effecting such Adverse Recommendation Change (the “Notice Period”), of its intention to effect such Adverse Recommendation Change (which notice shall specify in reasonable detail the basis for the Adverse Recommendation Change and, if such Adverse Recommendation Change is based upon receipt of a Superior Proposal, shall include the material terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal and include copies of the current drafts of all material agreements between such Party and the party making such Superior Proposal and any other material documents or agreements that relate to such Superior Proposal (it being understood and agreed that such notice or the public disclosure by such Party of such notice shall not in and of itself constitute an Adverse Recommendation Change)), (ii) during the Notice Period, the Party providing such notice shall negotiate with the other Party in good faith (to the extent such other Party wishes to negotiate) to make such adjustments to the terms and conditions of this Agreement such that failure to make an Adverse Recommendation Change would no longer be inconsistent with such Party’s Board’s fiduciary duties under applicable Law, and (iii) the applicable Party’s Board shall determine, after the close of business on the last day of the Notice Period, in good faith (after consultation with outside counsel and after giving effect to any adjustments proposed by the other Party in writing during the Notice Period) that failure to make an Adverse Recommendation Change would be inconsistent with such Board’s fiduciary duties under applicable Law; provided, however, that in each the event of any material change to the foregoing clauses (A)-(D)material terms of such Superior Proposal, Frontier or Cowboy, as applicable, shall, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal each case, have delivered to the Companyother Party an additional notice consistent with that described in clause (i) above and the Notice Period shall have recommenced (in which case such Notice Period shall be for three (3) Business Days instead of five (5) Business Days).
(d) Frontier or Cowboy, as applicable, shall promptly (and in any event, within one (1) Business Day) notify the Stockholder other Party after it or any of its subsidiaries or any of their respective Representatives shall not be prohibited from participating in has received any Acquisition Proposal or inquiry, proposal or offer to enter into or seeking to have discussions or negotiations with respect relating to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only ifProposal. Such notice to the other Party shall indicate the identity of the Person making, and following include the Company’s receipt material terms and conditions, of such Acquisition Proposal, inquiry, proposal or offer (including a complete copy thereof if in writing and any related documents or correspondence). Following the Company Board determines that date hereof, each Party shall keep the Company other Party reasonably informed orally and its representatives may engage in such writing on a current basis (and in any event, no later than one (1) Business Day) of any material developments, discussions or negotiations in response to regarding any Acquisition Proposal including providing a copy of all material documentation (including drafts) or material correspondence with respect thereto and upon the request of such other Party shall apprise the other Party of the status and details of such Acquisition Proposal pursuant Proposal. Each Party agrees that it and its subsidiaries will not enter into any agreement with any Person subsequent to and the date hereof which prohibits such Party from providing any information to the other Party in accordance with, or from otherwise complying with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquirythis Section 7.3.
(be) It is understood that Nothing contained in this Agreement limits Section 7.3 shall prohibit Frontier or the rights Frontier Board, or Cowboy or the Cowboy Board, respectively, from (i) issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or taking and disclosing a position contemplated by Rule 14e-2(a), 14d-9 or Item 1012(a) of Stockholder only Regulation M-A under the Exchange Act, or (ii) making any disclosure to the extent that Stockholder is acting stockholders of Frontier or Cowboy, as applicable, if, in Stockholder's capacity as a stockholder the good faith judgment of the Companysuch Board (after consultation with outside counsel), failure to so disclose would be inconsistent with its fiduciary duties under applicable Law, and nothing herein shall be construed as preventing Stockholder acting disclosure referred to in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office clauses (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciaryi) and no action taken solely in any such capacity as an officer or director of the Company (ii) shall not be deemed to constitute a breach be an Adverse Recommendation Change so long as (A) any such disclosure includes the Frontier Board Recommendation or the Cowboy Board Recommendation, as applicable, without any modification or qualification thereof or continues the prior recommendation of the Frontier Board or the Cowboy Board, respectively, and (B) does not contain an express Adverse Recommendation Change; provided, that in no event shall this Section 7.3(e) affect either Party’s obligations specified in Section 7.3(b).
(f) For purposes of this Agreement.:
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder Until the termination of this Agreement in accordance with Section 8.1, Company shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause authorize or permit any of its other Affiliates Subsidiaries, or Persons acting on any of its or their behalf (including affiliates, officers, directors, employees, agents or representatives (including, without limitation, any investment bankersbanker, attorneysfinancial advisor, accountants attorney or other agentsaccountant retained by Company or any of its Subsidiaries), "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse solicit or knowingly encourage (including by way of furnishing information or knowingly facilitate assistance), or take any other action to facilitate, any inquiries, any expression of interest, or the submission or announcement making of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal (as defined below), or Acquisition Inquiry, (C) engage in enter into or maintain or continue discussions or negotiations negotiate with any Person with respect person in furtherance of such inquiries or to any obtain an Acquisition Proposal or Acquisition Inquiry, agree to or (D) approve, recommend or enter into, endorse any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing in each this Agreement shall prohibit the Board of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any Directors of its Representatives shall not be prohibited Company from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives furnishing information to, immediately cease and cause to be terminated any existing solicitation ofor entering into, maintaining or continuing discussions or negotiations with, any Person person that makes an unsolicited Acquisition Proposal after the date hereof, if, and to the extent that, the Board of Directors of Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that (a) such Acquisition Proposal would be more favorable to Company's stockholders than the Merger and (b) the failure to take such action would result in a breach by the Board of Directors of Company of its fiduciary duties to Company's stockholders under applicable law, and, prior to furnishing any non-public information to such person, Company receives from such person an executed confidentiality agreement with provisions no less favorable to Company than the letter agreement relating to the furnishing of confidential information of Company to Parent referred to in the last sentence of Section 6.3. Company shall promptly notify Parent if it is prepared to provide access to the properties, books or records of Company or any of its Subsidiaries to any person who has made an Acquisition Proposal or Proposal, and Company shall at such time inform Parent of the material terms of any such Acquisition InquiryProposal.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach For purposes of this Agreement, "Acquisition Proposal" means an inquiry, offer or proposal regarding any of the following (other than the transactions contemplated by this Agreement with Parent or Purchaser) involving Company: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of Company and its Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for 33-1/3 percent or more of the outstanding shares of capital stock of Company or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "“Representatives"”) not to, directly or indirectly, (A) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission or announcement making of any Acquisition Proposal or Acquisition Inquiry or any proposals or offers that constitute or would reasonably be expected likely to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition InquiryProposal, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition InquiryProposal, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal A) through (D) other than as permitted pursuant to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) Proposal. It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's ’s capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder or any of its Affiliates acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 2.2 and Section 8.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement; and it is further understood that notwithstanding anything to the contrary provided in this Agreement (but subject to the immediately following proviso), in the event that a Third Party submits an unsolicited bona fide Acquisition Proposal to the Company, the Stockholder or any of its Affiliates or Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if the Company and its representatives are permitted to engage in discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with Section 8.2 of the Merger Agreement; provided, further, that, subject to the provisos contained in this Section 6(a), in no event shall the Stockholder take any action in clause (D) above prior to the termination of the Agreement.
(b) Stockholder shall notify Parent in writing promptly (but in no event later than 24 hours) after it obtains knowledge of the receipt by Stockholder, any of its Affiliates or any of its or their respective Representatives of any Acquisition Proposal, any negotiations or discussions that are sought to be initiated or continued with Stockholder or Stockholder’s Representatives in connection with any Acquisition Proposal, or any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Person (which notification shall include the identity of the Person making the Acquisition Proposal or request and the material terms and conditions of such Acquisition Proposal). Stockholder shall keep Parent reasonably informed of any material change to the terms of such Acquisition Proposal.
Appears in 1 contract
Samples: Support Agreement (Cafepress Inc.)
No Solicitation; Acquisition Proposals. (a) Stockholder The Company shall not, and nor shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause it permit any of its other Affiliates Subsidiaries to, nor shall it authorize or Persons acting on permit any officer, director or representative or agent of the Company or any of its Subsidiaries (including, without limitation, any investment banker, financial advisor, attorney or their behalf (including employees, investment bankers, attorneys, accountants accountant retained by the Company or other agents, "Representatives"any of its Subsidiaries) not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage (including by way of furnishing information), or knowingly take any other action to facilitate the submission or announcement initiation of any inquiries or proposals regarding an Acquisition Proposal (as hereinafter defined), (ii) engage in negotiations or Acquisition Inquiry discussions concerning, or provide any proposals or offers that constitute or would reasonably be expected nonpublic information to lead to an any person relating to, any Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (Diii) approve, agree to approve or recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing contained in each this Section 4.2 shall prohibit the Company or the Board from taking and disclosing to stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act; and provided, further, that, prior to the Stockholders' Meeting, (y) the Special Committee on behalf of the foregoing clauses (A)-(D), in Company may upon the event bona fide written unsolicited request of a Third Party submits (as hereinafter defined) furnish information or data (including, without limitation, confidential or non-public information or data) relating to the Company or its Subsidiaries for the purposes of an Acquisition Proposal and participate in negotiations with a person making an unsolicited written bona fide written Acquisition Proposal if the Special Committee believes that to do so could reasonably lead to a Superior Proposal (as hereinafter defined) and (z) the Special Committee and the Board may each withdraw or modify its recommendation relating to this Agreement or the Merger if the Special Committee or the Board determines in good faith after consultation with its financial and legal advisors that the Merger is no longer in the best interests of the Company's stockholders and that such withdrawal or modification is, therefore, reasonably likely to be required in order to satisfy its fiduciary duties to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry's stockholders under applicable law.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder Until the termination of this Agreement in accordance with Section 8.1, Company shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause authorize or permit any of its other Affiliates Subsidiaries, or Persons acting on any of its or their behalf (including affiliates, officers, directors, employees, agents or representatives (including, without limitation, any investment bankersbanker, attorneysfinancial advisor, accountants attorney or other agentsaccountant retained by Company or any of its Subsidiaries), "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse solicit or knowingly encourage (including by way of furnishing information or knowingly facilitate assistance), or take any other action to facilitate, any inquiries, any expression of interest, or the submission or announcement making of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal (as defined below), or Acquisition Inquiry, (C) engage in enter into or maintain or continue discussions or negotiations negotiate with any Person with respect person in furtherance of such inquiries or to any obtain an Acquisition Proposal or Acquisition Inquiry, agree to or (D) approve, recommend or enter into, endorse any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing in each this Agreement shall prohibit the Board of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any Directors of its Representatives shall not be prohibited Company from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives furnishing information to, immediately cease and cause to be terminated any existing solicitation ofor entering into, maintaining or continuing discussions or negotiations with, any Person relating to any person that makes an unsolicited Acquisition Proposal or after the date hereof, if, and to the extent that, the Board of Directors of Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that (a) such Acquisition Inquiry.
Proposal would be more favorable to Company's stockholders than the Merger and (b) It is understood that this Agreement limits the rights failure to take such action would result in a breach by the Board of Stockholder only Directors of Company of its fiduciary duties to Company's stockholders under applicable law, and, prior to furnishing any non-public information to such person, Company receives from such person an executed confidentiality agreement with provisions no less favorable to Company than the letter agreement relating to the extent that Stockholder is acting furnishing of confidential information of Company to Parent referred to in Stockholder's capacity as a stockholder the last sentence of the Section 6.3. Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Pillowtex Corp)
No Solicitation; Acquisition Proposals. (a) Stockholder From the date hereof until the termination hereof, and except as expressly permitted by the following provisions of this Section 6.5, the Company will not, nor will it permit any of its subsidiaries to, nor will it authorize or permit any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined in Section 9.11(a)), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to the Company or any of its subsidiaries, 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 or (iii) enter into any agreement with respect to an Acquisition Proposal (other than a confidentiality agreement as described below); provided, however, that nothing contained in this Section 6.5(a) shall notprohibit the Company Board from, prior to receipt of the Company Requisite Vote, furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (A) the Company Board, after considering applicable provisions of state law and after consultation with outside legal counsel, determines in good faith that such action is necessary for the Company Board to discharge properly its fiduciary duties to the Company's stockholders under applicable Law, (B) the Company Board determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, and believes in good faith, after consultation with an independent, nationally recognized financial advisor and after taking into account the strategic benefits to be derived from the Merger and the long term prospects of Parent and its subsidiaries, would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger, and for which the Company Board determines in its good faith judgment (after such consultation) that financing, to the event required, is then committed or reasonably available (any such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (C) prior to taking such action, the Company (x) provides reasonable notice to Parent to the effect that it is taking such action and (y) receives from such person an executed confidentiality/standstill agreement in reasonably customary form and in any event containing terms at least as stringent in all material respects as those contained in the Confidentiality Agreement between Parent and the Company as of the date hereof. Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal by such person, the Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof or amendments or supplements thereto and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall cause each thereafter inform Parent on a prompt basis of its controlled Affiliatesthe status of any discussions or negotiations with such a third party, and any material changes to the terms and conditions of such Acquisition Proposal. Immediately after the execution and delivery of this Agreement, the Company will, and will cause its subsidiaries and affiliates, and their respective officers and directors (if applicable) not toofficers, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including directors, employees, investment bankers, attorneys, accountants or and other agents, "Representatives") not agents to, directly or indirectlycease and terminate any existing activities, (A) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person parties conducted heretofore with respect to any possible Acquisition Proposal Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or Acquisition Inquiryentities referred to in the first sentence hereof of the obligations undertaken in this Section 6.5(a).
(b) From the date hereof until the termination hereof, the Company will not (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company, or (DB) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment(except as expressly contemplated by this Agreement) amend, or agreement approve any transaction or redeem rights under, the Company Rights Agreement.
(c) Except as expressly permitted by this Section 6.5 or in principle connection with its termination of this Agreement in accordance with the terms and conditions of Section 8.3(a), the Company Board will not withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, its approval or recommendation of this Agreement or the Merger unless (whether i) the Company has complied with the terms of Section 6.5(a), (ii) a Superior Proposal is pending at the time the Company Board determines to take any such action, (iii) the Company Board, after considering applicable provisions of state law and after consultation with outside legal counsel, determines in good faith that such action is necessary for the Company Board to discharge properly its fiduciary duties to the Company's stockholders under applicable Law and (iv) the Company shall have delivered to Parent a prior written or oral, binding or nonbinding) with respect notice advising Parent that it intends to an Acquisition Proposaltake such action and describing its reasons for taking such action (such notice to be delivered not less than two days prior to the time such action is taken); provided, however, the Company Board may not approve or recommend (and in connection therewith, withdraw or modify its approval or recommendation of this Agreement or the Merger) an Acquisition Proposal unless such an Acquisition Proposal is a Superior Proposal (and the Company shall have first complied with its obligations set forth in Section 8.3(a) and the time period referred to in the last sentence of Section 8.3(a) has expired) and unless it shall have first consulted with outside legal counsel, and have determined that such action is necessary for the Company Board to comply with its fiduciary duties to the Company's stockholders. Nothing contained in each of this Section 6.5 shall prohibit the foregoing clauses (A)-(D)Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders which, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to good faith judgment of the CompanyCompany Board, the Stockholder after considering applicable provisions of state law and after consultation with outside legal counsel is required under applicable Law; provided, that except in accordance with this Section 6.5(c) or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt its termination of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and this Agreement in accordance with the terms and conditions of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement8.3(a), the performance Board of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director Directors of the Company shall be deemed not withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.
(d) Notwithstanding anything contained in this Agreement to the contrary, any action by the Company Board permitted by, and taken in accordance with, this Section 6.5 shall not constitute a breach of this Agreement by the Company. Nothing in this Section 6.5 shall (i) permit the Company to terminate this Agreement (except as provided in Article VIII hereof) or (ii) affect any other obligations of the Company under this Agreement.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder shall Except as expressly permitted by the merger agreement, from November 6, 2021 until the effective time or, if earlier, the valid termination of the merger agreement in accordance with its terms, CorePoint will not, and shall will cause each of its controlled Affiliates, subsidiaries not to and will direct its and their respective officers and directors (if applicable) representatives not to: • initiate, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf solicit, propose, knowingly assist, knowingly encourage (including employees, investment bankers, attorneys, accountants or other agents, "Representatives"by way of furnishing information) not to, directly or indirectly, (A) solicit, initiate, endorse or knowingly encourage or knowingly take any action to facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any inquiry, proposals or offers that constitute regarding, or would reasonably be expected to lead to an the making of, any Acquisition Proposal; • engage in, (B) continue or otherwise participate in any discussions with or negotiations relating to, or furnish or disclose any non-public information regarding the Company to any Person person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal (other than to state that the terms of this provision prohibit such discussions or Acquisition Inquirynegotiations); • approve, endorse or recommend, or (D) propose publicly to approve, recommend endorse or recommend, any Acquisition Proposal; or • negotiate, execute or enter into, any letter of intent or similar documentmerger agreement, acquisition agreement or commitmentother similar definitive agreement for any Acquisition Proposal (other than an acceptable confidentiality agreement (as defined in the merger agreement)); provided that any expressly permitted determination or action by the Board shall not be deemed to be a breach or violation of, or give Cavalier a right to terminate, the merger agreement. Notwithstanding anything to the contrary in the merger agreement, CorePoint or its Board may: • comply with its disclosure obligations under applicable law or the rules and policies of the NYSE, take and disclose to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer), make a “stop-look-and-listen” communication to the stockholders of CorePoint pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to the stockholders of CorePoint) or make any legally required disclosure to stockholders with regard to the transactions contemplated by the merger agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each (a) such disclosure includes an express reaffirmation of the foregoing clauses recommendation in favor of the merger, without any amendment, withdrawal, alteration, modification or qualification thereof and (A)-(D), b) the Board may not make a Change of Recommendation except to the extent otherwise permitted by the merger agreement; • prior to (but not after) obtaining the Company Requisite Vote: • contact and engage in the event a Third Party submits limited communications with any person or group of persons and their respective representatives who has made an unsolicited bona fide written Acquisition Proposal to after November 6, 2021 that was not solicited in material breach of the Companymerger agreement, solely for the Stockholder or any purpose of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with clarifying such Acquisition Proposal if and only if, the terms thereof and following the Company’s receipt of solely so that CorePoint may inform itself about such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.;
Appears in 1 contract
Samples: Merger Agreement
No Solicitation; Acquisition Proposals. (a) Stockholder shall notExcept as expressly permitted by the merger agreement, and shall cause each from May 11, 2021 until the effective time or, if earlier, the valid termination of the merger agreement in accordance with its controlled Affiliatesterms, Ferro and its and their respective officers and directors (if applicable) representatives will not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") not to, directly or indirectly: • initiate, (A) solicit, initiatepropose, endorse knowingly assist, knowingly encourage (including by way of furnishing information) or knowingly encourage take any action to facilitate any inquiry, proposals or knowingly facilitate offers regarding, or the submission making or announcement of completion of, any Acquisition Proposal or Acquisition Inquiry any inquiry or any proposals or offers proposal that constitute or would reasonably be expected to lead to an Acquisition Proposal; • engage in, continue or otherwise participate in any discussions with or negotiations relating to, any Acquisition Proposal (Bother than to state that the terms of this provision prohibit such discussions or negotiations) furnish or disclose providing or causing to be provided any non-public information regarding the Company or data relating to Ferro or any Person of its subsidiaries in connection with, or in response to, with an Acquisition Proposal or any inquiry or proposal that would reasonably be expected to lead to an Acquisition InquiryProposal; • approve, (C) engage in discussions endorse or negotiations with any Person with respect recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal Proposal; or Acquisition Inquiry• negotiate, or (D) approve, recommend execute or enter into, any letter of intent or similar documentmerger agreement, acquisition agreement or commitmentother similar definitive agreement for any Acquisition Proposal (other than an acceptable confidentiality agreement (as defined in the merger agreement)); provided that it is understood and agreed that any permitted determination or action by the Board shall not be deemed to be a breach or violation of, or give Prince a right to terminate, the merger agreement. Notwithstanding anything to the contrary in the merger agreement, Ferro or its Board may: • comply with its disclosure obligations under applicable law or the rules and policies of the NYSE, from taking and disclosing to its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer), make a “stop-look-and-listen” communication to the shareholders of Ferro pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to the shareholders of Ferro) or, after consulting with outside legal counsel, make any legally required disclosure to shareholders with regard to the transactions contemplated by the merger agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that the Board may not make a Change of Recommendation except to the extent otherwise permitted by the merger agreement. • prior to (but not after) obtaining the Company Requisite Vote: • contact and engage in each any communications or discussions with any person or group of the foregoing clauses (A)-(D), in the event persons and their respective representatives who has made a Third Party submits an unsolicited bona fide written Acquisition Proposal to after May 11, 2021 that was not solicited in breach (other than an unintentional or de minimis breach) of the Companymerger agreement, solely for the Stockholder or any purpose of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with clarifying such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.thereof;
Appears in 1 contract
Samples: Merger Agreement
No Solicitation; Acquisition Proposals. (a) Stockholder Between the date hereof and the Closing (or earlier termination of this Agreement pursuant to ARTICLE IX) Sellers shall not, and shall cause each of (i) the Partnership and its controlled Subsidiaries and (ii) Sellers’, the Partnership’s and its Subsidiaries’ respective Affiliates, directors, employees, agents and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf representatives (including employeesany investment banker, investment bankersfinancial advisor, attorneysattorney or accountant retained by Sellers, accountants the Partnership or other agents, "Representatives"its Subsidiaries) not toto not, directly or indirectly, (A) solicit, initiate, endorse solicit or knowingly (provided that each such Person shall be deemed to have such knowledge of the obligations set forth in this Section 6.5) encourage any Acquisition Proposal, or knowingly facilitate the submission furnish any information to any other Person with respect to, or announcement agree to, any Acquisition Proposal. Sellers shall promptly notify Purchaser after receipt of any Acquisition Proposal or Acquisition Inquiry any request for information relating to the Partnership or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to of its Subsidiaries by any Person in connection withwho has informed Sellers that such Person is considering making, or in response tohas made, an Acquisition Proposal (which notice shall identify the Person making, or considering making, such Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to Proposal and shall set forth the material terms of any Acquisition Proposal or Acquisition Inquiryreceived), or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement and Sellers shall keep Purchaser informed in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each reasonable detail of the foregoing clauses (A)-(D)terms, in the event a Third Party submits an unsolicited bona fide written status and other pertinent details of any such Acquisition Proposal to or request.
(b) To the Companyextent that it has not done so already, Sellers shall, and shall cause (i) the Partnership and its Subsidiaries and (ii) Sellers’, the Stockholder Partnership’s and its Subsidiaries’ respective Affiliates, directors, employees, agents and representatives (including any investment banker, financial advisor, attorney or accountant retained by Sellers, the Partnership or its Subsidiaries) to discontinue and desist from any of its Representatives shall not be prohibited from participating in any discussions solicitation efforts or negotiations with respect to or in furtherance of any Acquisition Proposal. Sellers shall immediately demand that any Person which has heretofore executed a confidentiality agreement with Sellers, the Partnership or any of its Subsidiaries, Affiliates, employees, agents or other representatives with respect to such Person’s consideration of a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposalto immediately return or destroy all confidential information heretofore furnished by Sellers, the Company Board determines that the Company and Partnership or any of its Subsidiaries, Affiliates, employees, agents or other representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms Person or any of Section 6.2(a) its Affiliates or Subsidiaries or any of the Merger Agreement. Stockholder shallits or their respective Affiliates, and shall cause its Representatives toemployees, immediately cease and cause to be terminated any existing solicitation of, agents or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiryother representatives.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Payless Shoesource Inc /De/)
No Solicitation; Acquisition Proposals. Between the date hereof and the Closing (a) Stockholder or earlier termination of this Agreement pursuant to ARTICLE IX), each of Sellers and the Companies shall not, and shall cause each of its controlled the Companies’ and the SSN Subsidiaries’ respective Affiliates, directors, employees, agents and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf representatives (including employeesany investment banker, investment bankersfinancial advisor, attorneysattorney or accountant retained by Sellers, accountants a Company or other agents, "Representatives"any SSN Subsidiary) not toto not, directly or indirectly, initiate, solicit or knowingly encourage any Acquisition Proposal, or furnish any information to any other Person with respect to, or agree to, any Acquisition Proposal. Between the date hereof and the Closing (Aor earlier termination of this Agreement pursuant to Article IX), each Seller other than those listed in the preceding sentence shall not, and shall cause such Seller's Affiliates and their respective directors, employees, agents and representatives (including any investment banker, financial advisor, attorney or accountant retained by such Seller) solicitto not, directly or indirectly, initiate, endorse solicit or knowingly encourage any Acquisition Proposal, or knowingly facilitate the submission furnish any information to any other Person with respect to, or announcement agree to, any Acquisition Proposal. Each Seller shall promptly notify LTFS after receipt of any Acquisition Proposal or Acquisition Inquiry any request for information relating to a Company or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to SSN Subsidiary by any Person in connection withwho has informed such Seller that such Person is considering making, or in response tohas made, an Acquisition Proposal (which notice shall identify the Person making, or considering making, such Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to Proposal and shall set forth the material terms of any Acquisition Proposal or Acquisition Inquiryreceived), or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement and each Seller shall keep LTFS informed in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each reasonable detail of the foregoing clauses (A)-(D)terms, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or status and other pertinent details of any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiryrequest.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ladenburg Thalmann Financial Services Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, (1) the Company shall, and the Company shall cause its and its subsidiaries' respective Representatives to, immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Third Party conducted heretofore by the Company, its subsidiaries or their respective Representatives with respect to any Acquisition Proposal and (2) the Company shall not, and the Company shall cause each of its controlled Affiliates, and its and their subsidiaries' respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") Representatives not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage (including by way of furnishing information), or knowingly facilitate take any other action to facilitate, any inquiries or the making or submission or announcement of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to an to, any Acquisition Proposal; (ii) enter into any agreement, (B) furnish arrangement or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person understanding with respect to any Acquisition Proposal or Acquisition Inquiryenter into any agreement, arrangement or understanding requiring the Company to abandon, terminate or fail to consummate the exchange of Company Shares pursuant to the Offer or the Merger or any other transaction contemplated by this Agreement; (iii) participate or engage in any discussions or negotiations with, or disclose or provide any non-public information or data relating to the Company or its subsidiaries or afford access to the properties, books or records or employees of the Company or its subsidiaries to, any Third Party relating to an Acquisition Proposal, or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; or (Div) approve, recommend or enter into, into any letter of intent or similar documentdocument or any contract, agreement or commitment, commitment contemplating or agreement in principle (whether written or oral, binding or nonbinding) with respect otherwise relating to an any Acquisition Proposal; provided, however, that .
(b) Notwithstanding the restrictions set forth in each of the foregoing clauses (A)-(DSection 6.4(a), in if, at any time prior to the event a Third Party submits exchange of Company Shares pursuant to the Offer, (1) the Company has received an unsolicited bona fide written proposal from a Third Party relating to an Acquisition Proposal (under circumstances in which the Company has complied with its obligations under Section 6.4(a)) and (2) the Board of Directors of the Company concludes in good faith (after consultation with a financial advisor of nationally recognized reputation and after receiving the written advice of its outside counsel) (i) that such Acquisition Proposal constitutes a Superior Proposal and (ii) that the failure to provide such information or participate in such negotiations or discussions would result in a breach by the Board of Directors of the Company of its fiduciary duties to the Company's Shareholders under applicable Law, the Stockholder Company may, subject to its giving Parent at least two business days' prior written notice of the identity of such Third Party and all of the terms and conditions of such Acquisition Proposal and of the Company's intention to furnish nonpublic information to, or any of its Representatives shall not be prohibited from participating in any enter into discussions or negotiations with, such Third Party, (x) furnish information with respect to the Company and its subsidiaries to any Third Party pursuant to a possible tender customary confidentiality agreement containing terms no less restrictive than the terms of the Confidentiality Agreement dated March 7, 2001, entered into between Xxxxxx Xxxxxx & Company, on behalf of the Company, and supportOvernite Transportation Company, voting as the same may be amended, supplemented or similar agreement modified (the "Confidentiality Agreement"), provided that a copy of all such information is delivered simultaneously to Parent if it has not previously been so furnished to Parent, and (y) participate in connection with discussions or negotiations regarding such proposal.
(c) The Company shall as soon as practicable (and in any event within 24 hours) notify and advise Parent orally and in writing of any Acquisition Proposal if or of any request for information or inquiry that may lead to an Acquisition Proposal, the terms and only if, and following the Company’s receipt conditions of such Acquisition Proposal, request or inquiry, and the identity of the person making such Acquisition Proposal, request or inquiry. The Company shall inform Parent on a prompt and current basis of the status, content and details of any discussions regarding, or relating to, any Acquisition Proposal with a Third Party (including amendments and proposed amendments) and, as promptly as practicable, of any change in the price, structure or form of the consideration or material terms of and conditions regarding the Acquisition Proposal. In fulfilling its obligations under this paragraph (c) of this Section 6.4, the Company Board determines that shall provide promptly to Parent copies of all written correspondence or other written material, including material in electronic form, between the Company and its representatives may engage such Third Party, except in the event where the delivery of such discussions or negotiations copies would result in response to such Acquisition Proposal pursuant to and in accordance with a breach by the terms Board of Section 6.2(a) Directors of the Merger Agreement. Stockholder shall, and shall cause Company of its Representatives to, immediately cease and cause fiduciary duties to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquirythe Company's Shareholders under applicable Law.
(bd) It is understood The Company agrees that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder it will promptly inform its and its subsidiaries' respective Representatives of the Company, and nothing herein shall be construed as preventing Stockholder acting obligations undertaken in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office this Section 6.4.
(including, subject to the limitation e) Nothing contained in this Section 6.2 of 6.4 or Section 6.5 hereof shall prohibit the Merger Agreement, the performance of obligations Company from taking and disclosing to its shareholders a position as required by Rule 14d-9 or Rule 14e-2(a) promulgated under the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciaryExchange Act.
(f) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach For purposes of this Agreement.,
Appears in 1 contract
Samples: Agreement and Plan of Merger
No Solicitation; Acquisition Proposals. (a) Stockholder During the period from and including the date of this Agreement to and including the Effective Time, Company shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause authorize or permit any of its other Affiliates affiliates, officers, directors, employees, agents or Persons acting on its or their behalf representatives (including employeeswithout limitation any investment banker, investment bankersfinancial advisor, attorneysattorney or accountant retained by Company), accountants or other agents, "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse solicit or knowingly encourage (including by way of furnishing information or knowingly facilitate assistance), or take any other action to facilitate, any inquiries, any expression of interest or the submission or announcement making of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to to, an Acquisition Proposal, (B) furnish or disclose enter into or maintain or continue discussions or negotiate with any information regarding the Company person in furtherance of such inquiries or to any Person in connection with, or in response to, obtain an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions agree to or negotiations with endorse any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing in each this Agreement shall prohibit the Board of the foregoing clauses (A)-(D)Directors of Company, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal prior to the time at which this Agreement shall have been approved by Company's stockholders, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives furnishing information to, immediately cease and cause to be terminated any existing solicitation ofor entering into, maintaining or continuing discussions or negotiations with, any Person person that makes an unsolicited, bona fide written Acquisition Proposal after the date hereof if, and to the extent that, the Board of Directors of Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that (i) such Acquisition Proposal would be more favorable to Company's stockholders than the Merger, and (ii) the failure to take such action would result in a breach by the Board of Directors of Company of its fiduciary duties to Company's stockholders under applicable law, and, prior to furnishing any non-public information to such person, Company receives from such person an executed confidentiality agreement with provisions no less favorable to Company than the letter agreement relating to the furnishing of confidential information of Company to Parent referred to in the last sentence of Section 6.3. Company shall promptly (and, in any event within 24 hours) notify Parent after receipt of any Acquisition Proposal or any request for information relating to Company for access to the properties, books or records of Company by any person who has informed Company that such person is considering making, or has made, an Acquisition InquiryProposal (which notice shall identify the person making, or considering making, such Acquisition Proposal and shall set forth the material terms of any Acquisition Proposal received), and Company shall keep Parent informed in reasonable detail of the terms, status and other pertinent details of any such Acquisition Proposal.
(b) It is understood that During the period from and including the date of this Agreement limits to and including the rights Effective Time, neither the Board of Stockholder only Directors of Company nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval of this Agreement or the transactions contemplated hereby or the recommendation referred to in the penultimate sentence of Section 6.2; provided, however, that nothing contained in this Agreement will prohibit the Board of Directors of Company from withdrawing or modifying the recommendation referred to in the penultimate sentence of Section 6.2 following the receipt by Company after the date hereof, under circumstances not involving any breach of the provisions of Section 6.6(a), of an unsolicited Acquisition Proposal if, and to the extent that Stockholder is acting in Stockholder's capacity as a stockholder that, the Board of the Directors of Company, after consultation with and nothing herein shall based upon the advice of independent legal counsel, determines in good faith that (i) the transactions contemplated by such Acquisition Proposal would be construed as preventing Stockholder acting more favorable to Company's stockholders than the transactions contemplated hereby, and (ii) the failure to take such action would result in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required breach by the Board of Directors of Company of its fiduciary obligations of Stockholder acting solely duties to Company's stockholders under applicable law.
(c) Nothing in its capacity as an officer or directorthis Section 6.6, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director by the Board of Directors of the Company pursuant to this Section 6.6, will (i) have any effect on Company's obligations under the first sentence of Section 6.2, which obligations shall be deemed absolute and unconditional, (ii) permit Company to constitute a breach terminate this Agreement except in accordance with the provisions of Section 8.1, (iii) permit Company to enter into any agreement providing for any transaction contemplated by an Acquisition Proposal for as long as this Agreement remains in effect, or (iv) affect in any manner any other obligation of Company under this Agreement.
(d) For purposes of this Agreement, "Acquisition Proposal" means an inquiry, offer, proposal or other indication of interest regarding any of the following (other than the transactions contemplated by this Agreement with Parent or Merger Sub) involving Company: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of Company, in a single transaction or series of related transactions; (iii) any offer to purchase 20% percent or more of the outstanding shares of capital stock of Company; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder Subject to the other provisions of this Section 6.5, during the Interim Period, neither the Company nor Parent shall, and each of the Company and Parent shall cause each of their respective Subsidiaries, and its and their officers and directors, managers or equivalent not to, and shall use its reasonable best efforts to cause any other Representatives of itself or its Subsidiaries not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal (provided that for purposes of this Section 6.5(a), the references in the definition of “Acquisition Proposal” to “twenty percent (20%)” shall be deemed to be “five percent (5%)” (an “Inquiry”)), (ii) engage in any discussions or negotiations regarding, or furnish to any Third Party any nonpublic information in connection with, or otherwise cooperate in any way with, or knowingly facilitate in any way any effort by, any Third Party in connection with, any Acquisition Proposal or Inquiry, (iii) approve or recommend an Acquisition Proposal, (iv) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5) providing for or relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (v) propose or agree to do any of the foregoing. For the avoidance of doubt, the Company shall not, and shall cause each of its controlled Affiliatesthe Company Subsidiaries, and its and their respective officers and directors (if applicable) directors, managers or equivalent not to, and will instruct and shall use commercially its reasonable best efforts to cause any other Representatives of its other Affiliates the Company or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") the Company Subsidiaries not to, directly or indirectly, engage in any activity of the foregoing clauses (Ai)-(v) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission or announcement of with respect to any Acquisition Proposal or Acquisition any Inquiry that was made by any Third Party prior to the date of this Agreement.
(b) Notwithstanding anything to the contrary in Section 6.5(a), at any time prior to obtaining the requisite Company Stockholder Approval or any proposals the Parent Shareholder Approval, as applicable, the Company or offers that constitute or would reasonably be expected to lead Parent, as applicable, may, in response to an unsolicited bona fide written Acquisition ProposalProposal by a Third Party received after the date of this Agreement (that did not result from a breach of this Section 6.5) (i) furnish nonpublic information to such Third Party (and such Third Party’s Representatives) making an Acquisition Proposal (provided, however, that (A) prior to so furnishing such information, the applicable party receives from the Third Party an executed Acceptable Confidentiality Agreement, and (B) furnish any nonpublic information concerning such party and its Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to the other party, be provided to such other party prior to or disclose any information regarding the Company simultaneously with providing it to any Person in connection withsuch Third Party), or in response to, an Acquisition Proposal or Acquisition Inquiry, and (Cii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or such Third Party (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbindingand such Third Party’s Representatives) with respect to an the Acquisition Proposal if, in the case of each of clauses (i) and (ii): (x) the Company Board or the Parent Board, as the case may be, determines in good faith, after consultation with its financial and legal advisors, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and (y) the Company Board or the Parent Board, as the case may be, determines in good faith, after consultation with legal counsel, that failure to take such action would be reasonably likely to be inconsistent with the duties of its directors or trustees under applicable Law; provided, however, that in each of the foregoing clauses (A)-(Di) and (ii), such Acquisition Proposal was not solicited in violation of this Section 6.5.
(c) The Company and Parent shall notify the other party promptly (but in no event later than one (1) Business Day) after receipt of any Acquisition Proposal or any request for nonpublic information relating to such party or any of its Subsidiaries by any Third Party, or any Inquiry from any Person seeking to have discussions or negotiations with such party relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Third Party making the Acquisition Proposal or Inquiry and the material terms and conditions of any Inquiries, proposals or offers (including a copy thereof if in writing and any related documentation or correspondence). The Company and Parent shall also promptly, and in any event within one (1) Business Day, notify the other, orally and in writing, if it enters into discussions or negotiations concerning any Acquisition Proposal or provides nonpublic information or data to any person in accordance with Section 6.5(b) and keep the other party informed of the status and terms of any such proposals, offers, discussions or negotiations on a current basis, including by providing a copy of all material documentation or correspondence relating thereto.
(d) Except as permitted by this Section 6.5(d), neither the Company Board nor Parent Board nor any committee thereof, shall (i) withhold, withdraw, qualify or modify (or publicly propose to withhold, withdraw, qualify or modify), in a manner adverse to the event Company, on the one hand, or Parent on the other hand, the Company Recommendation or the Parent Recommendation, as the case may be, (ii) approve, adopt or recommend (or publicly propose to approve, adopt or recommend) any Acquisition Proposal, (iii) fail to include the Company Recommendation or the Parent Recommendation, as the case may be, in the Joint Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Acquisition Proposal within ten (10) Business Days of the request of the other party, and reaffirm the Company Recommendation or the Parent Recommendation, as applicable, within ten (10) Business Days of the request of the other party (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(d), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause or permit the Company or Parent, as applicable, to enter into any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board shall be permitted to, and at any time prior to obtaining the Parent Shareholder Approval, the Parent Board shall be permitted to, (x) terminate this Agreement to enter into a Third Party submits definitive agreement, including an Alternative Acquisition Agreement, with respect to a Superior Proposal, subject to compliance with Section 6.5(e) and Section 8.3, if such board (A) has received an Acquisition Proposal that, in the good faith determination of such board, after consultation with its financial and legal advisors, constitutes, a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by the other party pursuant to, Section 6.5(e), and (B) determines in good faith, after consultation with its financial and legal advisors, that failure to take such action would be inconsistent with the directors’ duties under applicable Law, or (y) effect an Adverse Recommendation Change if, after the date of this Agreement the Company or Parent, as applicable, receives an unsolicited bona fide written Acquisition Proposal by a Third Party that did not result from a breach of this Section 6.5 and that such board determines in good faith, after consultation with its financial and legal advisors, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and such board determines in good faith, after consultation with its financial and legal advisors, that failure to take such action would be inconsistent with the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement directors’ duties under applicable Law.
(e) Except in connection with an Acquisition Proposal, neither the Company Board nor the Parent Board shall be entitled to terminate this Agreement or effect an Adverse Recommendation Change as permitted under Section 6.5(d) unless (i) the Company or Parent, as the case may be, has provided a written notice (a “Notice of Superior Proposal”) to the other party that it intends to take such Acquisition action and describing the material terms and conditions of, attaching a complete copy of, the Superior Proposal if and only ifthat is the basis of such action, and identifying the Third Party making such Superior Proposal (ii) during the five (5) Business Day period following the Company’s or Parent’s receipt of such Acquisition the Notice of Superior Proposal, as the Company Board determines that case may be, the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder other party shall, and shall cause its Representatives to, negotiate with the receiving party in good faith (to the extent the receiving party desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal, and (iii) following the end of the five (5) Business Day period, the Company Board or the Parent Board, as the case may be, shall have determined in good faith, after consultation with its financial and legal advisors, taking into account any changes to this Agreement proposed in writing by receiving party in response to the Notice of Superior Proposal or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. Any material amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal, and the notifying party shall be required to comply again with the requirements of this Section 6.5(e); provided, however, that references to the five (5) Business Day period above shall then be deemed to be references to a three (3) Business Day period.
(f) Nothing contained in this Section 6.5 or elsewhere in this Agreement shall prohibit either party or its Subsidiaries from taking and disclosing to its respective stockholders or shareholders (as applicable) a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement, and provided, further, that any such disclosure that addresses the approval, recommendation or declaration of advisability by the Company Board or the Parent Board, as applicable, with respect to this Agreement or an Acquisition Proposal shall be deemed to be an Adverse Recommendation Change, unless the Company Board or the Parent Board, as applicable, in connection with such communication publicly states that its recommendation with respect to this Agreement and the transactions contemplated hereby has not changed or refers to the prior recommendation of such party, without disclosing any Adverse Recommendation Change.
(g) Each of the Company and Parent shall, and shall cause each of its respective Subsidiaries and its and their officers and directors, managers or equivalent, and shall use its reasonable best efforts to cause any of their other Representatives, to immediately cease and cause to be terminated any existing solicitation ofdiscussions, negotiations or discussions or negotiations with, communications with any Person relating conducted heretofore with respect to any Acquisition Proposal. The parties shall use all reasonable efforts to cause all Third Parties who have been furnished confidential information regarding either party in connection with the solicitation of or discussions regarding an Acquisition Proposal or Acquisition Inquiry.
within the six (b6) It is understood that months prior to the date of this Agreement limits the rights of Stockholder only to promptly return or destroy such information (to the extent that the Company is entitled to have such information returned or destroyed). Moreover, neither the Company nor Parent shall release any Third Party from, or waive any provisions of, any confidentiality or standstill agreement to which it or any of its Subsidiaries is a party with respect to any Acquisition Proposal.
(h) Notwithstanding any Adverse Recommendation Change made by either the Company Board or the Parent Board, as applicable, unless such (i) Adverse Recommendation Change is with respect to a Superior Proposal, (ii) the party making the Adverse Recommendation Change has otherwise complied with this Section 6.5 (including the notice obligations of Section 6.5(e)) and (iii) this Agreement is terminated pursuant to Section 8.1, (A) the Company shall cause the approval of the REIT Merger to be submitted to a vote of its stockholders at the Company Stockholder is acting Meeting and (B) Parent shall cause the approval of the Parent Share Issuance to be submitted to a vote of its shareholders at the Parent Shareholder Meeting.
(i) Without the prior written consent of each of the Company and Parent (which shall not be unreasonably withheld, conditioned or delayed), approval of the REIT Merger (in Stockholder's capacity as a stockholder the case of the Company) or approval of the Parent Share Issuance (in the case of Parent) is the only matter, other than (i) any say-on-golden parachute vote that may be required pursuant to Section 14A(b)(2) of the Exchange Act and nothing herein shall be construed Rule 14a-21(c) thereunder and (ii) a proposal to approve the adjournment of the Company Stockholder Meeting or the Parent Shareholder Meeting, as preventing applicable, if necessary, to solicit additional proxies, in the event that there are not sufficient votes at the time of the Company Stockholder acting in its capacity Meeting or the Parent Shareholder Meeting, as an officer or director applicable, to obtain the approval of the Company’s stockholders or Parent’s shareholders, as applicable, which either the Company or Parent, as a trustee applicable, shall propose to be acted on by its respective stockholders or fiduciary of any employee benefit plan shareholders (as applicable) at the Company Stockholder Meeting or trustthe Parent Shareholder Meeting, from fulfilling the obligations of such office as applicable.
(including, subject j) Prior to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach termination of this Agreement, neither party shall submit to the vote of its respective stockholders or shareholders (as applicable) any Acquisition Proposal.
(k) For purposes of this Agreement, except as otherwise may be expressly qualified in context by reference to the applicable definition:
Appears in 1 contract
Samples: Merger Agreement (RLJ Lodging Trust)
No Solicitation; Acquisition Proposals. (a) Stockholder shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "“Representatives"”) not to, directly or indirectly, (A) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's ’s capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder Seller shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") not to, directly or indirectly, and shall cause its Affiliates and respective Representatives not to, (Ai) solicit, initiate, endorse initiate or knowingly encourage any inquiries or knowingly facilitate the submission or announcement making of any Acquisition Proposal offer or Acquisition Inquiry or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information proposal regarding the Company acquisition or license of the Purchased Assets or (ii) enter into, continue or participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information relating to the Purchased Assets or Seller in connection with, or in response to, an Acquisition Proposal otherwise cooperate with a Person or Acquisition Inquiry, (C) engage in discussions group making any offer or negotiations with proposal regarding any Person with respect to any Acquisition Proposal offer or Acquisition Inquiry, proposal regarding the acquisition or license of the Purchased Assets or (Diii) approve, recommend execute or enter into, into any letter of intent or similar documentintent, memorandum of understanding, agreement or commitmentin principle, acquisition agreement, option agreement, or agreement in principle (whether written other similar contract providing for the acquisition or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each license of the foregoing clauses Purchased Assets.
(A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(ab) of the Merger Agreement. Stockholder Seller shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation ofactivities, discussions, or discussions or negotiations with, with any Person relating Persons other than Buyer and its Affiliates conducted prior to the Execution Date with respect to any Acquisition Proposal offer or Acquisition Inquiryproposal regarding the acquisition or license of the Purchased Assets.
(bc) It is understood that this Agreement limits If Seller or any of its Affiliates receives any inquiry, proposal or offer regarding the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder acquisition or license of the CompanyPurchased Assets of the nature described in paragraph (a) above (other than an inquiry, proposal or offer with respect to a merger of Seller with a Third Party or acquisition by a Third Party of capital stock or other equity securities of Seller), Seller shall, within three (3) Business Days after such receipt, notify Buyer of such inquiry, proposal or offer, including the identity of the other party and nothing herein the terms of such inquiry, proposal or offer, provided that all such information shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, Seller Confidential Information subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement8.1.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder shall notExcept as expressly permitted by this Section 7.3, neither Sxxxxxxxxx nor Company shall, and Sxxxxxxxxx shall cause each of its controlled Affiliatesthe Sxxxxxxxxx Subsidiaries and Company shall cause each of the Company Subsidiaries not to, and shall instruct its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") Representatives not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage or knowingly facilitate any inquiry, proposal or offer with respect to, or the submission announcement, making or announcement completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any negotiations regarding, or furnish to any Person (other than Sxxxxxxxxx, Company or their respective Representatives) any non-public information or data in furtherance of, any Acquisition Proposal, (iii) enter into any definitive acquisition agreement, merger agreement, share exchange agreement, consolidation agreement, option agreement, joint venture agreement or partnership agreement (including any letter of intent or agreement in principle) (each, an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 7.3(a)), (iv) grant any waiver, amendment or Acquisition Inquiry release under any standstill or confidentiality agreement or any proposals Takeover Statute (provided, however, that notwithstanding anything contained herein to the contrary, if the Company Board or offers the Sxxxxxxxxx Board determine after consultation with legal counsel, that constitute not doing so would be inconsistent with its duties under applicable Law, Company or would reasonably the Sxxxxxxxxx, respectively, may waive any provision of any standstill or confidentiality agreement that prohibits a confidential proposal being made to such Board (directly or indirectly through its Representatives) so long as (1) such waiver, amendment or release is limited only to permitting such a confidential proposal and (2) such Party promptly notifies the other Party of the granting such waiver, amendment or release prior thereto), or (v) agree, approve, recommend or propose to do any of the foregoing. Each of Company and Sxxxxxxxxx shall, and shall cause each of the Company Subsidiaries and the Sxxxxxxxxx Subsidiaries, respectively, and shall use its commercially reasonable efforts to cause its and their Representatives to, (A) immediately cease and cause to be expected terminated all existing negotiations with any Person and its Representatives (other than Sxxxxxxxxx or any of its Representatives) conducted heretofore with respect to lead to an any Acquisition Proposal, (B) furnish enforce any confidentiality or disclose standstill or provisions of similar effect to which Company or Sxxxxxxxxx, as applicable, or any of their subsidiaries is a party or of which Company or Sxxxxxxxxx, as applicable, or any of their subsidiaries is a beneficiary and (C) request the prompt return or destruction, to the extent required by any confidentiality agreement, of all confidential information regarding previously furnished to any such Person and its Representatives and immediately terminate all physical and electronic data room access previously granted to any such Person, its subsidiaries or any of their respective Representatives. Notwithstanding the foregoing, if, at any time following the date of this Agreement and prior to obtaining the Company Stockholder Approval or the Sxxxxxxxxx Stockholder Approval, as applicable, (1) Company or Sxxxxxxxxx, as applicable, receives a written Acquisition Proposal that was not the result of a violation of this Section 7.3(a) and (2) the Company Board or the Sxxxxxxxxx Board, as applicable, determines in good faith (after consultation with outside counsel and its financial advisor) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and its failure to take such action would be inconsistent with its duties as under applicable Law, then the Party receiving such Acquisition Proposal may (and may authorize its subsidiaries and its and their Representatives to), after notifying the other Party in writing of such determination, (x) furnish non-public information with respect to it and its subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have previously been provided to the other Party or shall be provided (to the extent permitted by applicable Law) to the other Party prior to or concurrently with the time it is provided to such Person and (y) participate in connection withnegotiations with the Person making such Acquisition Proposal (and such Person’s Representatives) regarding such Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, or in response to, each Party and its Representatives may contact any Person submitting an Acquisition Proposal (that was not the result of a violation of this Section 7.3(a)) to clarify and understand the terms of an Acquisition Proposal so as to determine whether such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal.
(b) Neither the Company Board nor the Sxxxxxxxxx Board shall (A) fail to make or shall withdraw (or modify or qualify in any manner adverse to the other Party or publicly propose to withdraw, modify or qualify in any manner adverse to the other Party) the Company Board Recommendation or the Sxxxxxxxxx Board Recommendation, respectively, or the determination of the advisability to its stockholders of the Merger and other transactions contemplated hereby or make any other public statement in connection with the Company Stockholders Meeting or Sxxxxxxxxx Stockholders Meeting that would reasonably be expected to have the same effect of the foregoing, (B) adopt, approve, or publicly recommend, endorse or otherwise declare advisable the adoption of any Acquisition InquiryProposal, (C) engage fail to include the Company Board Recommendation or the Sxxxxxxxxx Board Recommendation, respectively, in discussions whole or negotiations with any Person with respect to any Acquisition Proposal in part in the Company Proxy Statement or Acquisition Inquirythe Sxxxxxxxxx Proxy Statement, respectively, or any filing or amendment or supplement relating thereto, (D) approve, fail to recommend against any pending tender or enter into, any letter exchange offer that constitutes an Acquisition Proposal within ten (10) Business Days after it is launched or (E) fail within three (3) Business Days of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a request by the other Party following the public announcement of an Acquisition Proposal, to reaffirm the Company Board Recommendation or the Sxxxxxxxxx Board Recommendation, as applicable (each such action set forth in this Section 7.3(b) being referred to herein as an “Adverse Recommendation Change”), provided, that notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Company Stockholder Approval or the Sxxxxxxxxx Stockholder Approval, as applicable, and following compliance with Section 7.3(c), the Company Board or the Sxxxxxxxxx Board may, if such Board determines in good faith (after consultation with outside counsel and its financial advisor) that the failure to do so would be inconsistent with its duties under applicable Law, make an Adverse Recommendation Change. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, the Exchange Ratio Announcement shall not be deemed an Adverse Recommendation Change.
(c) Prior to effecting an Adverse Recommendation Change, (i) Company or Sxxxxxxxxx, as applicable, shall notify the other Party in writing, at least four (4) Business Days prior to effecting such Adverse Recommendation (the “Notice Period”), of its intention to effect such Adverse Recommendation Change (which notice shall specify in reasonable detail the basis for the Adverse Recommendation Change and, if such Adverse Recommendation Change is based upon receipt of a Superior Proposal, shall include the material terms and conditions of such Superior Proposal and the identity of the Person making such proposal and include copies of the current drafts of all material agreements between such Party and the party making such Superior Proposal and any other material documents or agreements that relate to such Superior Proposal (it being understood and agreed that such notice or the public disclosure by such Party of such notice shall not in and of itself constitute an Adverse Recommendation Change)), (ii) during the Notice Period, Company or Sxxxxxxxxx, as applicable, shall negotiate with the other Party in good faith (to the extent such other Party wishes to negotiate) to make such adjustments to the terms and conditions of this Agreement such that failure to make an Adverse Recommendation Change would no longer be inconsistent with such Board’s duties under applicable Law, and (iii) at the end of the Notice Period, the Company Board or the Sxxxxxxxxx Board, as applicable, shall determine in good faith (after consultation with outside counsel and financial advisors) that failure to take such action would be inconsistent with such Board’s duties under applicable Law; provided, however, that in each the event of any material change to the foregoing clauses (A)-(D)material terms of such Superior Proposal, Company or Sxxxxxxxxx, as applicable, shall, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal each case, have delivered to the Companyother Party an additional notice consistent with that described in clause (i) above and the Notice Period shall have recommenced (in which case such Notice Period shall be for two (2) Business Days instead of four (4) Business Days).
(d) Company or Sxxxxxxxxx, as applicable, shall promptly (and in any event, within one (1) Business Day) notify the Stockholder other Party after it or any of its subsidiaries or any of their respective Representatives shall not be prohibited from participating in has received any Acquisition Proposal or inquiry, proposal or offer to enter into or seeking to have discussions or negotiations with respect relating to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if or the initial request for non-public information concerning Company or Sxxxxxxxxx, as applicable, or any of its subsidiaries. Such notice to the other Party shall indicate the identity of the Person making such request and only if, include the material terms and following the Company’s receipt conditions of such Acquisition Proposal, inquiry, proposal or offer (including a complete copy thereof if in writing and any related documents or correspondence). Following the date hereof, each Party shall keep the other Party reasonably informed orally and in writing on a current basis (and in any event, within one (1) Business Day) of any material developments, discussions or negotiations regarding any Acquisition Proposal (whether made before or after the date hereof) including providing a copy of all material documentation (including drafts) or material correspondence with respect thereto and upon the request of other Party shall apprise the other Party of the status and details of such Acquisition Proposal. Each Party agrees that it and its subsidiaries will not enter into any agreement with any Person subsequent to the date hereof which prohibits such Party from providing any information to other Party in accordance with, or from otherwise complying with the terms of, this Section 7.3.
(e) Nothing contained in this Section 7.3 shall prohibit Company or the Company Board, or Sxxxxxxxxx or the Sxxxxxxxxx Board, respectively, from (i) issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or taking and disclosing a position contemplated by Rule 14e-2(a), 14d-9 or Item 1012(a) of Regulation M-A under the Exchange Act, or (ii) making any disclosure to the stockholders of Company or Sxxxxxxxxx, as applicable, if, in the good faith judgment of such Board (after consultation with outside counsel), failure to so disclose would be inconsistent with its duties under applicable Law, and disclosure referred to in clauses (i) and (ii) shall not be deemed to be an Adverse Recommendation Change so long as (A) any such disclosure includes the Company Board determines that Recommendation or the Sxxxxxxxxx Board Recommendation, as applicable, without any modification or qualification thereof or continues the prior recommendation of the Company and its representatives may engage in such discussions Board or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shallSxxxxxxxxx Board, respectively, and (B) does not contain an express Adverse Recommendation Change; provided, that in no event shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquirythis Section 7.3(e) affect the obligations of Company specified in Section 7.3(b).
(bf) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach For purposes of this Agreement.:
Appears in 1 contract
No Solicitation; Acquisition Proposals. Between the date hereof and the Closing (a) Stockholder or earlier termination of this Agreement pursuant to ARTICLE IX), each of the Principal Shareholders and the Company shall not, and shall cause each of the Sellers’, the Company’s and its controlled Subsidiaries’ respective Affiliates, directors, employees, agents and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf representatives (including employeesany investment banker, investment bankersfinancial advisor, attorneysattorney or accountant retained by Sellers, accountants the Company or other agents, "Representatives"any Subsidiary) not toto not, directly or indirectly, initiate, solicit or knowingly encourage any Acquisition Proposal, or furnish any information to any other Person with respect to, or agree to, any Acquisition Proposal. Between the date hereof and the Closing (Aor earlier termination of this Agreement pursuant to ARTICLE IX), each Seller other than those listed in the preceding sentence shall not, and shall cause such Seller’s Affiliates and their respective directors, employees, agents and representatives (including any investment banker, financial advisor, attorney or accountant retained by such Seller) solicitto not, directly or indirectly, initiate, endorse solicit or knowingly encourage any Acquisition Proposal, or knowingly facilitate the submission furnish any information to any other Person with respect to, or announcement agree to, any Acquisition Proposal. Each Seller shall promptly notify Parent after receipt of any Acquisition Proposal or Acquisition Inquiry any request for information relating to the Company or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to Subsidiary by any Person in connection withwho has informed such Seller that such Person is considering making, or in response tohas made, an Acquisition Proposal (which notice shall identify the Person making, or considering making, such Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to Proposal and shall set forth the material terms of any Acquisition Proposal or Acquisition Inquiryreceived), or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement and each Seller shall keep Parent informed in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each reasonable detail of the foregoing clauses (A)-(D)terms, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or status and other pertinent details of any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiryrequest.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ladenburg Thalmann Financial Services Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder Until the termination of this Agreement in accordance with Section 8.1, Company shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause authorize or permit any of its other Affiliates Subsidiaries, or Persons acting on any of its or their behalf affiliates, officers, directors, employees, agents or representatives (including employeeswithout limitation any investment banker, investment bankersfinancial advisor, attorneysattorney or accountant retained by Company or any of its Subsidiaries), accountants or other agents, "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse solicit or knowingly encourage (including by way of furnishing information or knowingly facilitate assistance), or take any other action to facilitate, any inquiries, any expression of interest or the submission or announcement making of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal (as hereinafter defined), or Acquisition Inquiry, (C) engage in enter into or maintain or continue discussions or negotiations negotiate with any Person with respect person in furtherance of such inquiries or to any obtain an Acquisition Proposal or Acquisition Inquiry, agree to or (D) approve, recommend or enter into, endorse any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing in each this Agreement shall prohibit the Board of the foregoing clauses Directors of Company from (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(aA) of the Merger Agreement. Stockholder shall, and shall cause its Representatives furnishing information to, immediately cease and cause to be terminated any existing solicitation ofor entering into, maintaining or continuing discussions or negotiations with, any Person person that makes an unsolicited Acquisition Proposal after the date hereof or (B) recommending an Acquisition Proposal to the shareholders of Company, if, and to the extent that, the Board of Directors of Company, (i) determines in good faith that such Acquisition Proposal would constitute a Superior Proposal (as hereinafter defined) and (ii) determines in good faith (after consultation with outside legal counsel) that such action is necessary for the Board of Directors of Company to comply with its fiduciary duties under applicable Law, and, prior to furnishing any non- public information to such person, Company receives from such person an executed confidentiality agreement with provisions no less favorable to Company than the letter agreement relating to the furnishing of confidential information of Company to Parent referred to in the last sentence of Section 6.3. Company shall promptly (and, in any event within 24 hours) notify Parent after receipt of any Acquisition Proposal or any request for information relating to Company or any of its Subsidiaries or for access to the properties, books or records of Company or any of its Subsidiaries by any person who has informed Company that such person is considering making, or has made, an Acquisition InquiryProposal, and Company shall keep Parent informed in reasonable detail of the status and details of any such Acquisition Proposal.
(b) It is understood that For purposes of this Agreement, "Acquisition Proposal" means an inquiry, offer or proposal regarding any of the following (other than the transactions contemplated by this Agreement limits with Parent or Merger Sub) involving Company: (A) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the rights assets of Stockholder only Company and its Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (C) any tender offer or exchange offer for 20 percent or more of the outstanding shares of capital stock of Company or the filing of a registration statement under the Securities Act in connection therewith; or (D) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. For purposes of this Agreement, "Superior Proposal" means any Acquisition Proposal that Company's Board of Directors determines in its good faith judgment (based on the advice of a financial advisor of nationally recognized reputation) to be more favorable to Company's shareholders than the Merger and for which financing, to the extent that Stockholder required, is acting then committed or which, in Stockholderthe good faith judgment of Company's capacity as a stockholder Board of the CompanyDirectors, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director is reasonably capable of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of being obtained by such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreementthird party.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder The Company shall not, and nor shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause it permit any of its other Affiliates subsidiaries to, nor shall it authorize or Persons acting on permit any officer, director or representative or agent of the Company or any of its subsidiaries (including, without limitation, any investment banker, financial advisor, attorney or their behalf (including employees, investment bankers, attorneys, accountants accountant retained by the Company or other agents, "Representatives"any of its subsidiaries) not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage (including by way of furnishing non-public information), or knowingly take any other action to facilitate the submission initiation of any inquiries or announcement of proposals regarding an Acquisition Proposal (as hereinafter defined), (ii) engage in negotiations or discussions concerning, or provide any nonpublic information to any person relating to, any Acquisition Proposal or Acquisition Inquiry (iii) agree to approve or recommend any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing contained in each of this Agreement shall prohibit the foregoing clauses Company or the Board from taking and disclosing to stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act; and Provided, further, that nothing contained in this Agreement shall prevent the Company, the Special Committee or the Board from (A)-(D), x) providing information in the event response to an unsolicited request therefor by a Third Party submits Person that has made an unsolicited bona fide written Acquisition Proposal; (y) participating in any negotiations or discussions with any Person who has made an unsolicited bona fide Acquisition Proposal; or (z) recommending such an Acquisition Proposal to the Companystockholders of the Company if, and only to the extent that, (i) in each such case referred to in clause (x), (y) or (z) above, the Stockholder Special Committee or the Board determines in good faith (after consultation with outside legal counsel and Xxxxxx X. Xxxx or any other investment banker or attorney or accountant retained by the Special Committee, the Board or the Company) that such action is required in order for its members to comply with their fiduciary duties under applicable law (the parties hereto acknowledge and agree that, so long as this Section 6.02 has been complied with in all respects, any such action described in clauses (x) or (y) above shall be permitted to be taken regardless of its Representatives shall not whether it would be prohibited from participating in any discussions or negotiations necessary under applicable law, if it is taken only with respect to a possible tender Superior Proposal (as defined below)) and support(ii) in each case referred to in clause (x), voting (y) or similar agreement (z) above, the Special Committee or the Board determines in connection good faith (after consultation with outside legal counsel and Xxxxxx X. Xxxx or any other investment banker or attorney or accountant retained by the Special Committee, the Board or the Company) that, if accepted, such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to would constitute a breach of this AgreementSuperior Proposal.
Appears in 1 contract
Samples: Merger Agreement (Leapnet Inc)
No Solicitation; Acquisition Proposals.
(a) Stockholder The Company agrees that it shall, and shall notdirect and use its reasonable best efforts to cause its affiliates, directors, officers, employees, agents and representatives (including, without limitation, any investment banker, financial advisor, attorney, accountant or other representative retained by it) (all of the foregoing, collectively, “Representatives”) to, immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal, and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal, including by requesting the other party to promptly return or destroy any confidential information previously furnished by or on behalf of the Company or any of its Subsidiaries thereunder. From the date of this Agreement through the Effective Time, neither the Company nor any of its Subsidiaries shall, and shall cause each of its controlled Affiliates, and its and their respective directors, officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause or employees or any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") Representative retained by them not to, directly or indirectlyindirectly through another Person, (Ai) solicit, initiateinitiate or encourage (including by way of furnishing information or assistance), endorse or knowingly encourage take any other action designed to facilitate or knowingly facilitate that is likely to result in, any inquiries or the submission or announcement making of any Acquisition Proposal proposal or Acquisition Inquiry offer that constitutes, or any proposals or offers that constitute or would is reasonably be expected likely to lead to an to, any Acquisition Proposal, (Bii) furnish provide any confidential information or disclose any information regarding the Company data to any Person in connection with, or in response to, an relating to any Acquisition Proposal or Acquisition InquiryProposal, (Ciii) engage participate in any discussions or negotiations with regarding any Acquisition Proposal, (i) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or similar obligations of any Person with respect other than First Foundation or its Affiliates, (v) approve or recommend, propose to any Acquisition Proposal approve or Acquisition Inquiryrecommend, or (D) approve, recommend execute or enter into, any letter of intent or similar documentintent, agreement in principle, merger agreement, asset purchase agreement or commitmentshare exchange agreement, option agreement or other similar agreement related to any Acquisition Proposal or propose to do any of the foregoing, or agreement (vi) make or authorize any statement, recommendation or solicitation in principle (whether written or oral, binding or nonbinding) with respect to an support of any Acquisition Proposal; provided, however, that in each prior to the date of the foregoing clauses (A)-(D)Company Meeting, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines in good faith, after consulting with its outside legal and financial advisors, that the failure to do so would reasonably be expected to result in a breach of the Company Board’s fiduciary duties under applicable Law, the Company may, in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.08(a) that the Company Board determines in good faith constitutes a Superior Proposal, subject to providing two (2) Business Days prior written notice of its decision to take such action to First Foundation and identifying the Person making the proposal and all the material terms and conditions of such proposal and compliance with Section 6.08(b), (1) furnish information with respect to itself to any Person making such a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its representatives may engage outside counsel) on terms no more favorable to such Person than the terms contained in such the Confidentiality Agreement are to First Foundation, and (2) participate in discussions or negotiations in response to regarding such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreementa Superior Proposal. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only In addition to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained Company set forth in Section 6.2 6.08(a), the Company shall promptly (within 24 hours) advise First Foundation orally and in writing of its receipt of any Acquisition Proposal and keep First Foundation reasonably informed, on a current basis, of the Merger Agreementcontinuing status thereof, including the performance material terms and conditions thereof and any material changes thereto, and shall contemporaneously provide to First Foundation all materials provided to or made available to any third party pursuant to this Section 6.08 which were not previously provided to First Foundation.
(c) The Company agrees that any violation of obligations required the restrictions set forth in this Section 6.08 by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director Representative of the Company or its Subsidiaries shall be deemed to constitute a breach of this AgreementSection 6.08 by the Company.
(d) Nothing contained in this Agreement shall prevent the Company or the Company Board from complying with Rules 14d-9 and 14e-2 under the Exchange Act with respect to an Acquisition Proposal.
(e) The parties hereto agree that irreparable damage would occur in the event any of the restrictions set forth in Section 6.08(a) were violated by the Company, its Subsidiaries or any Representative of the Company or its Subsidiaries. It is accordingly agreed that First Foundation shall be entitled to an injunction or injunctions to prevent breaches of Section 6.08 and to enforce specifically the terms and provisions thereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which First Foundation is entitled at law or in equity.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder Except as otherwise expressly provided in this Section 7.4, from and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, neither the Company nor its Subsidiary shall, nor shall not, and shall cause each of the Company or its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause Subsidiary authorize or permit any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") not Representatives to, directly or indirectly: (i) solicit, initiate or knowingly facilitate or encourage the submission of any inquiry, discussion, offer, proposal or request from any Person (other than Parent) that could constitute, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) grant any waiver under any confidentiality, “standstill” or similar obligation of any third party with respect to the Company or its Subsidiary, (iii) engage in or enter into, continue or otherwise participate in any discussions or negotiations in connection with an Acquisition Proposal or any inquiry, discussion, offer, proposal or request that could reasonably be expected to lead to an Acquisition Proposal, (iv) furnish non-public information relating to the Company and its Subsidiary or afford access to the Company’s and its Subsidiary’s officers, employees, agents, properties, books, contracts and records to any third party (and its Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer, proposal or request that could reasonably be expected to lead to an Acquisition Proposal, (v) otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposal or (vi) approve any transaction under, or any person becoming an “interested stockholder” under, Section 203 of the DGCL. The Company shall immediately cease, and cause its Representatives to immediately cease, any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. The Company shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Acquisition Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, documents and materials relating to an Acquisition Proposal or to the Company or its businesses, operations or affairs heretofore furnished by the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person and immediately terminate any “data room” or similar access of such Persons and their Representatives. For purposes of this Section 7.4, the term “Person” means any Person other than, with respect to the Company, Parent or any Subsidiaries of Parent and, with respect to Parent, the Company.
(b) Notwithstanding the foregoing, the Board of Directors of the Company, directly or indirectly through Affiliates or Representatives, may (i) take and disclose to the Company’s stockholders a position contemplated by Rule 14d-9, Rule 14e-2, or Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to any Acquisition Proposal, and make any disclosure to the Company’s stockholders in each case only if and to the extent the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Law or is otherwise required under applicable Law and (ii) prior to the Company Stockholders Meeting, (A) solicitengage in negotiations or discussions with any Person (and its Representatives) in response to a bona fide written Acquisition Proposal submitted by such Person after the date hereof and not as a result of any violation of this Section 7.4, initiate(B) furnish to such Person information relating to the Company or its Subsidiary and provide access to the Company’s and its Subsidiary’s officers, employees, agents, properties, books, contracts and records in each case pursuant to an Acceptable Confidentiality Agreement and/or (C) modify, waive, amend or release any existing standstill obligations owed by any such Person to the Company or any of its Subsidiaries; provided, further, that the Board of Directors of the Company shall be permitted to take an action described in the foregoing clause (ii) if, and only if, prior to taking such particular action, (x) the Board of Directors of the Company has determined in good faith (A) after consultation with outside legal counsel and financial advisors that such Acquisition Proposal constitutes, or could reasonably be expected to result in, a Superior Proposal and (B) after consultation with outside counsel that failure to take such action would be inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Law, (y) the Company has complied with Section 7.4(d), and (z) prior to furnishing such information or affording such access, the Company has entered into an Acceptable Confidentiality Agreement with such Person and, to the extent nonpublic information that has not been made available to Parent is made available to such Person, furnish such nonpublic information to Parent substantially concurrently with the time it is furnished to such other Person.
(c) Except as set forth in this Section 7.4(c), neither the Company’s Board of Directors nor any committee thereof shall (i) withdraw, qualify, modify or amend (or publicly propose to withdraw, qualify, modify or amend) the Company Board Recommendation in any manner adverse to Parent, (ii) approve, endorse or knowingly encourage recommend an Acquisition Proposal, or knowingly facilitate (iii) approve, recommend or allow the submission Company to enter into a letter of intent or announcement contract relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement entered into following compliance with this Section 7.4) (each, a “Change in Recommendation”). Notwithstanding anything in Section 7.1 or this Section 7.4 to the contrary, at any time prior to the receipt of the Required Company Vote, (x) the Board of Directors of the Company may (i) make a Change in Recommendation of the type referred to in Section 7.4(c)(i) in response to a Company Intervening Event, or (ii) make a Change in Recommendation of any type following receipt of a written Acquisition Proposal that the Board of Directors of the Company determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Superior Proposal, in each case if, and only if, the Board of Directors of the Company has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Law and the Company complies with Section 7.4(d) or (y) following receipt of a written Acquisition Proposal that the Board of Directors of the Company determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Superior Proposal, the Board of the Directors of the Company may terminate this Agreement for the purpose of entering into a definitive acquisition agreement, merger agreement or similar definitive agreement (an “Alternative Acquisition Agreement”) with respect to such Superior Proposal, if, and only if, the Board of Directors of the Company has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Board of Directors of the Company to the Company’s stockholders under applicable Law and the Company complies with Section 7.4(d) and, concurrently with entering into an Alternative Acquisition Agreement with respect to such Superior Proposal, (1) the Company terminates this Agreement in accordance with the provisions of Section 9.1(g) and (2) the Company pays the Company Termination Fee.
(d) Prior to the Company taking any action permitted (i) under Section 7.4(c)(x)(i), (A) the Company shall have provided Parent with four Business Days’ prior written notice advising Parent it intends to effect a Change in Recommendation and specifying, in reasonable detail, the reasons therefor, (B) during such four Business Day period, if requested by Parent, the Company shall have engaged in good faith negotiations with Parent to amend the terms of this Agreement in a manner that obviates the need to effect a Change in Recommendation, and (C) Parent shall not have made during such four Business Day period a written, definitive proposal that the Board of Directors of the Company determines in good faith, after consultation with its financial advisors and outside legal counsel, which obviates the need for such Change in Recommendation, or (ii) under Section 7.4(c)(x)(ii) or Section 7.4(c)(y), (A) the Company shall provide Parent with four Business Days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Acquisition Proposal, or any other material amendment to any applicable Acquisition Proposal, shall require a new notice and an additional two Business Day period) advising Parent that the Board of Directors of the Company intends to take such action, and if applicable, specifying the material terms and conditions of the Superior Proposal and that the Company shall, during such four Business Day period (or subsequent two Business Day period), (B) the Company shall have negotiated in good faith with Parent to make such adjustments to the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (C) Parent shall not have made during such four Business Day period a written, definitive proposal that the Board of Directors of the Company determines in good faith, after consultation with its financial advisors and outside legal counsel, causes such Superior Proposal to no longer be a Superior Proposal. Such good faith negotiations shall in each case include permitting Parent to meet or negotiate with the Company’s legal and financial advisors.
(e) The Company shall notify Parent as promptly as practicable (but in any event within 24 hours) after receipt or occurrence of any Acquisition Proposal or Acquisition Inquiry or Proposal, any proposals or offers inquiry that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any request for non-public information regarding relating to the Company or its Subsidiary or for access to any Person in connection withthe business, properties, assets, books or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each records of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder Company or its Subsidiary or any third party. Such notice shall identify the proponent and the material terms and conditions of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions inquiry or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreementrequest. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the The Company shall be deemed to constitute keep Parent informed in all material respects on a breach reasonably prompt basis, of this Agreementmaterial developments, discussions and negotiations with respect thereto.
Appears in 1 contract
Samples: Merger Agreement (Pantry Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder Except as otherwise provided in this Section 13.2, during the Interim Period, Company shall not, and shall cause each of its controlled Affiliates, subsidiaries and its and their respective officers and directors (if applicable) not to, and will instruct shall not authorize and shall use commercially reasonable best efforts to cause any other 61 Representatives of Company or any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") subsidiaries not to, directly or indirectly, (Ai) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission any inquiry, proposal or announcement of any Acquisition Proposal offer that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would could reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal (an “Inquiry”), (ii) enter into, continue or otherwise participate or engage in any negotiations or discussions regarding, or furnish to any person other than Purchaser or its Representatives any non-public information or data in furtherance of, any Acquisition Proposal or Inquiry, (Ciii) engage approve, recommend, declare advisable or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share exchange agreement, consolidation agreement, option agreement, joint venture agreement, partnership agreement or other agreement, in each case related to an Acquisition Proposal (other than a Company Acceptable Confidentiality Agreement), or requiring or having the effect of requiring Company to abandon, terminate or breach its obligations hereunder or fail to consummate the West Coast Asset Sale (each item referred to in this clause (iii), a “Company Alternative Acquisition Agreement”), or (iv) agree to or propose publicly to do any of the foregoing. Company shall, and shall cause each of its subsidiaries to, and shall direct the Representatives of Company and its subsidiaries to, (A) immediately cease and cause to be terminated all existing discussions or and negotiations with any Person person and its Representatives (other than Purchaser or any of its Representatives) conducted heretofore with respect to any Acquisition Proposal, and (B) not terminate, amend, release or modify any provision of any standstill agreement (including any standstill provisions contained in any confidentiality or other agreement) to which it or any of its Affiliates or Representatives is a party except to allow the applicable party to make an Acquisition Proposal to the Company Board on a non-public basis. For the avoidance of doubt, nothing in this Section 13.2(a) shall prevent or Acquisition Inquiryotherwise limit the right of Company, any subsidiary of the Company (including any Seller), or any of their representatives to communicate in accordance with Section 7.6 with a Tenant or the 5th and Xxxx Ground Lessor that has a Purchase Option solely in connection with the potential exercise by such Tenant or the 5th and Xxxx Ground Lessor of a Purchase Option.
(Db) approveNotwithstanding anything herein to the contrary, recommend or enter intobut subject to Company’s compliance with this Section 13.2, if, at any letter time following the date of intent or similar documentthis Agreement and prior to obtaining the Company Stockholder Approval, agreement or commitment(i) Company receives an unsolicited written Acquisition Proposal that the Company Board believes in good faith to be bona fide, (ii) such Acquisition Proposal was not the result of a violation of Section 13.2(a), and (iii) the Company Board determines in good faith (after consultation with outside legal counsel and its financial advisor) that such Acquisition Proposal constitutes, or agreement in principle could reasonably be expected to lead to, a Superior Proposal, then Company may (whether written or oral, binding or nonbindingand may authorize its Representatives to) (x) furnish non-public information with respect to Company and its subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a Company Acceptable Confidentiality Agreement; provided, that any non-public information provided to any person given such access shall have previously been provided to Purchaser or shall be provided to Purchaser as soon as reasonably practicable (and in any event within 48 hours of the time it is provided to such person), and (y) participate in negotiations with the person making such Acquisition Proposal (and such person’s Representatives) regarding such Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, Company and its Representatives may correspond in writing with any person submitting an Acquisition Proposal (that was not the result of a violation of Section 13.2(a)) to request clarification of the terms of an Acquisition Proposal so as to determine whether 62 such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal.
(c) Except as provided in Section 13.2(d), the Company Board (i)(A) shall not fail to make and shall not withdraw (or modify or qualify in any manner adverse to Purchaser or publicly propose to withdraw, modify or qualify in any manner adverse to Purchaser) the Company Board Recommendation, (B) shall not adopt, approve, recommend, endorse or otherwise declare advisable any Acquisition Proposal (or publicly propose or resolve to do any of the foregoing) and (C) shall not fail to include the Company Board Recommendation in the Proxy Statement (each such action set forth in this Section 13.2(c)(i) being referred to herein as a “Company Adverse Recommendation Change”), and (ii) shall not authorize, cause or permit Company or any of its subsidiaries to enter into any Company Alternative Acquisition Agreement relating to any Acquisition Proposal (other than a Company Acceptable Confidentiality Agreement pursuant to Section 13.2(a)).
(d) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Company Stockholder Approval, the Company Board may (i) make a Company Adverse Recommendation Change in response to an Intervening Event if the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to do so in response to such Intervening Event would be inconsistent with its duties under applicable law or (ii) make a Company Adverse Recommendation Change, terminate this Agreement pursuant to Section 14.1(d)(ii) and concurrently enter into a Company Alternative Acquisition Agreement if the Company Board has received an unsolicited written bona fide Acquisition Proposal (and Company is not in breach of this Section 13.2) that, in the good faith determination of the Company Board, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal; provided, howeverthat the Company Board shall only be entitled to effect a Company Adverse Recommendation Change, terminate this Agreement pursuant to Section 14.1(d)(ii) and enter into a Company Alternative Acquisition Agreement as permitted under this Section 13.2(d) if (A) Company has provided a prior written notice (a “Notice of Change of Recommendation”) to Purchaser that Company intends to take such action, identifying the person or entity making the Superior Proposal and describing in reasonable detail the material terms and conditions of the Superior Proposal or Intervening Event, as applicable, that in each is the basis of such action including, if applicable, copies of any written proposals or offers and any proposed agreements related to a Superior Proposal (it being agreed that the delivery of the foregoing clauses (A)-(DNotice of Change of Recommendation by Company shall not constitute a Company Adverse Recommendation Change), in (B) during the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and three (3) Business Day period following the CompanyPurchaser’s receipt of such Acquisition Proposalthe Notice of Change of Recommendation, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease negotiate with Purchaser in good faith (to the extent Purchaser desires to negotiate) to make such adjustments in the terms and cause conditions of this Agreement, so that, in the case of a Superior Proposal, such Superior Proposal ceases to constitute a Superior Proposal, or, in the case of an Intervening Event, in order to obviate the need to make such Company Adverse Recommendation Change; and (C) following the end of such three (3) Business Day period, the Company Board shall have determined in good faith, taking into account any changes to this Agreement proposed in writing by Purchaser in response to the Notice of Change of Recommendation or otherwise, that (I) after consultation with outside legal counsel and financial advisors, the Superior Proposal giving rise to the Notice of Change 63 of Recommendation continues to constitute a Superior Proposal or (II) after consultation with outside counsel, in the case of an Intervening Event, the failure of the Company Board to effect a Company Adverse Recommendation Change would be inconsistent with the directors’ duties under applicable law. Any amendment to the financial terms or any other material amendment of such a Superior Proposal shall require a new Notice of Change of Recommendation, and Company shall be required to comply again with the requirements of this Section 13.2(d); provided, however, that references to the three (3) Business Day period above shall then be deemed to be terminated references to a two (2) Business Day period following receipt by Purchaser of any existing solicitation of, or discussions or negotiations with, any Person relating to such new Notice of Change of Recommendation.
(e) Company shall promptly (but in no event later than 48 hours) notify Purchaser after receipt of any Acquisition Proposal or any request for non-public information relating to Company or any of its subsidiaries by any third party that informs Company that it is making, or has made, an Acquisition InquiryProposal, or any Inquiry from any person seeking to have discussions or negotiations with Company relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall identify the person making such Acquisition Proposal or Inquiry and shall indicate the material terms and conditions of any Acquisition Proposals or Inquiries to the extent known (including, if applicable, providing copies of any written Inquiries or requests and any proposed agreements related thereto, which may be redacted to the extent necessary to protect confidential information of the business or operations of the person making such Acquisition Proposals or Inquiries). Company shall also promptly (and in any event within 48 hours), notify Purchaser, orally and in writing, (i) if Company determines to begin providing non-public information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 13.2(b) and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice and (ii) of any change to the financial and other material terms and conditions of any Acquisition Proposal and otherwise keep Purchaser reasonably informed of the status and terms of any such proposals, offers, discussions or negotiations on a current basis, including by providing a copy of all proposals, offers, drafts of proposed agreements or correspondence relating thereto. Neither Company nor any of its subsidiaries shall, after the date of this Agreement, enter into any confidentiality or similar agreement that would prohibit it from providing such information to Purchaser.
(bf) It is understood that Nothing contained in this Section 13.2 or elsewhere in this Agreement limits shall prohibit Company or the rights of Stockholder only Company Board, directly or indirectly through its Representatives, from (i) disclosing to Company’s stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or (ii) making any disclosure to the extent stockholders of Company if the Company Board determines in good faith, after consultation with outside legal counsel, that Stockholder the failure to make such disclosure would be inconsistent with the directors’ duties under applicable law (for the avoidance of doubt, it being agreed that the issuance by Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Company Adverse Recommendation Change) or is acting in Stockholder's capacity as a stockholder of required by applicable law; provided that neither Company nor the Company, and nothing herein Company Board shall be construed permitted to recommend that the stockholders of Company tender any securities in connection with any tender offer or exchange offer that is an 64 Acquisition Proposal or effect a Company Adverse Recommendation Change with respect thereto, except as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office permitted by Section 13.2(d).
(including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciaryg) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach For purposes of this Agreement.:
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder Except with respect to this Agreement and the Transactions, no Platform Entity nor any Affiliate thereof nor any Representatives thereof retained by any Platform Entity shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") not to, directly or indirectly, (A) indirectly solicit, initiate, endorse initiate or knowingly encourage or knowingly facilitate the submission or announcement making of any Acquisition Proposal or Acquisition Inquiry or by any proposals or offers that constitute or would reasonably Person. Notwithstanding anything herein to the contrary, Platform and its Board of Directors shall be expected permitted (i) to lead the extent applicable, to comply with Rule 14d-9 and Rule 14e-2 promulgated under the 1934 Act with regard to an Acquisition Proposal, and (ii) to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited written Acquisition Proposal by any such Person, if and only to the extent (in the case of clause (ii) only) that (A) the initial purchase of Shares pursuant to the Offer shall not have occurred, (B) furnish or disclose Platform's Board of Directors concludes in good faith (x) after consulting with its independent financial advisors, that such Person is reasonably capable of consummating such Acquisition Proposal, taking into account the legal, financial, regulatory and other aspects of such Acquisition Proposal and the Person making such Acquisition Proposal, 32 38 and that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal and (y) (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, (C) prior to providing any information regarding the Company or data to any Person in connection with, or in response to, with an Acquisition Proposal by any such Person, Platform's Board of Directors receives from such Person an executed confidentiality agreement containing customary confidentiality and standstill provisions, and (D) prior to providing any information or Acquisition Inquiry, (C) engage in data to any Person or entering into discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition InquiryPerson, or Platform's Board of Directors notifies Parent promptly (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating and in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s event not later than 24 hours after receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(ahereof) of the Merger Agreementreceipt of the Acquisition Proposal and shall in such notice indicate in reasonable detail the identity of the offeror and the material terms and conditions of any proposal and shall keep Parent promptly advised of the status and material terms of any such inquiry, offer or proposal. Stockholder shallPlatform agrees that it will, and shall will cause its officers, directors and Representatives to, immediately cease and cause to be terminated any existing solicitation ofactivities, or discussions or negotiations with, existing as of the date of this Agreement with any Person relating parties conducted heretofore with respect to any Acquisition Proposal or Acquisition InquiryProposal. Platform agrees that it will use reasonable efforts to promptly inform its directors, officers, key employees, agents and Representatives of the obligations undertaken in this Section 7.10.
(b) It is understood that Except as provided in the following sentence, neither Platform nor its Board of Directors shall withdraw or modify in a manner adverse to Parent or Purchaser or following the public announcement of an Acquisition Proposal fail at Parent's request to reaffirm the approval by such Board of Directors of this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance Offer or the Merger or the favorable recommendation of obligations required the Board with respect thereto. Notwithstanding the foregoing, in the event that, after Platform has received an Acquisition Proposal not solicited in violation of this Agreement, the Board of Directors determines (after consultation with its outside legal counsel), prior to the consummation (or, if the Offer is consummated and extended, the initial consummation) of the Offer, that the failure to take the following action would be inconsistent with its fiduciary duties under applicable Law, the Board may (x) withdraw or modify its approval or recommendation of this Agreement, the Offer or the Merger and disclose to Platform's shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the fiduciary obligations 1934 Act or otherwise make disclosure to them, or (y) approve or recommend such an Acquisition Proposal that is a Superior Proposal; provided, however, that in no event may the Board of Stockholder acting solely in its capacity as an officer Directors take either such action earlier than the conclusion of the third full business day following Parent's receipt of written notice of the intention of the Board of Directors to do so.
(c) Platform and the Board of Directors shall not (i) redeem the Rights under the Platform Rights Agreement, or director(ii) waive or amend any provision of the Platform Rights Agreement, trustee or fiduciary) and no action taken solely in any such capacity as an officer case to permit or director facilitate the consummation of any Acquisition Proposal (other than the Company shall be deemed to constitute a breach of Acquisition Proposal contemplated by this Agreement), unless this Agreement has been terminated in accordance with its terms.
(d) Platform shall not release any third party from the confidentiality and standstill provisions of any agreement to which Platform is a party, unless Platform's Board of Directors concludes (after consultation with outside legal counsel) that the failure to do so
Appears in 1 contract
Samples: Merger Agreement (Acsys Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder From the date of -------------------------------------- this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, (1) the Company shall, and the Company shall cause its and its Subsidiaries' respective Representatives to, immediately cease and terminate any existing solicitation, initiation, knowing encouragement, discussion or negotiation with any Third Party conducted heretofore by the Company, its Subsidiaries or their respective Representatives with respect to any Acquisition Proposal and (2) the Company shall not, and the Company shall cause each of its controlled Affiliates, and its and their Subsidiaries' respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") Representatives not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage (including by way of furnishing non-public information), or knowingly facilitate take any other action to facilitate, any inquiries or the making or submission or announcement of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to an to, any Acquisition Proposal, ; (Bii) furnish or disclose enter into any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person agreement with respect to any Acquisition Proposal or Acquisition Inquiryenter into any agreement requiring the Company to abandon, terminate or fail to consummate the acquisition of Shares pursuant to the Offer or the Merger; (iii) participate or engage in any discussions or negotiations with, or disclose or provide any non- public information or data relating to the Company or its Subsidiaries to any Third Party relating to an Acquisition Proposal (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitmentexcept as required by legal process), or agreement in principle (whether written knowingly facilitate any effort or oral, binding attempt to make or nonbinding) with respect to implement an Acquisition Proposal or accept an Acquisition Proposal; providedor (iv) enter into any letter of intent, however, that agreement or similar document relating to any Acquisition Proposal.
(b) Notwithstanding the restrictions set forth in each of the foregoing clauses (A)-(DSection 6.2(a), in if, at any time prior to the event a Third Party submits acquisition of Shares pursuant to the Offer, (1) the Company has received an unsolicited bona fide written proposal from a Third Party relating to an Acquisition Proposal (under circumstances in which the Company has complied in all material respects with its obligations under Section 6.2(a)) and (2) the Board of Directors of the Company concludes in good faith (after consultation with a financial advisor of nationally recognized reputation and after receiving the advice of its outside counsel) (i) that such Acquisition Proposal may reasonably constitute a Superior Proposal and (ii) that the failure to provide such information or participate in such negotiations or discussions would result in a breach by the Board of Directors of the Company of its fiduciary duties to the Company's stockholders under applicable law, the Stockholder or any Company may, subject to its giving Parent 24 hours prior written notice of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect the identity of such Third Party and, to a possible tender the extent known, the terms and support, voting or similar agreement in connection with conditions of such Acquisition Proposal if and only if, and following of the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response 's intention to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives furnish nonpublic information to, immediately cease and cause to be terminated any existing solicitation of, or enter into discussions or negotiations with, such Third Party, (x) furnish information with respect to the Company and its Subsidiaries to any Person relating Third Party pursuant to a customary confidentiality agreement containing terms not materially less restrictive than the terms of the Confidentiality Agreement dated March 9, 2001, entered into between the Company and Parent, as the same may be amended, supplemented or modified (the "Confidentiality --------------- Agreement"), provided that a copy of all such information is delivered --------- simultaneously to Parent if it has not previously been so furnished to Parent, and (y) participate in discussions or negotiations regarding such proposal or take any of the actions described in Section 6.2(a)(2)(i) through (iv), -------------------- -----
(c) The Company shall within 24 hours notify and advise Parent orally and in writing of any Acquisition Proposal and the terms and conditions of such Acquisition Proposal. The Company shall inform Parent on a prompt and current basis of the status of any discussions regarding, or relating to, any Acquisition InquiryProposal with a Third Party (including amendments and proposed amendments) and, as promptly as practicable, of any change in the price, structure or form of the consideration or material terms of and conditions regarding the Acquisition Proposal. In fulfilling its obligations under this paragraph (c) of this Section 6.2, the Company shall provide promptly to Parent copies of all material written correspondence or material written documents furnished to the Company or its Representatives by or on behalf of such Third Party.
(bd) It is understood The Company agrees that it will promptly inform its and its Subsidiaries' respective Representatives of the obligations undertaken in this Section 6.2. -----------
(e) Nothing contained in this Agreement limits shall prohibit the rights of Stockholder only Company from taking and disclosing to the extent that Stockholder is acting in Stockholder's capacity its stockholders a position as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by Rule 14d-9 or Rule 14e-2(a) promulgated under the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciaryExchange Act.
(f) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach For purposes of this Agreement.,
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder shall notThe Company will, and shall will cause each of its Subsidiaries, controlled Affiliates, Affiliates and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any existing solicitation parties conducted heretofore with respect to, or that would reasonably be expected to lead to, any Competing Proposal, terminate all physical and electronic data room access previously granted to any such parties and their Representatives and request the prompt return or destruction of all confidential information previously furnished in connection therewith. Except as expressly permitted by this Section 5.7, the Company will not, and will cause each of its Representatives, its Subsidiaries and its controlled Affiliates not to, from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1, directly or indirectly through another Person, (i) solicit, initiate, knowingly encourage or facilitate any inquiry, discussion, offer or request that constitutes, or would reasonably be expected to lead to, any Competing Proposal, (ii) engage in any discussions or negotiations with (other than to state they are not permitted to engage in discussions), or furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the books or records of the Company or its Subsidiaries to, any Person concerning a possible Competing Proposal or that, to the Knowledge of the Company, is seeking to make, or has made, a Competing Proposal, (iii) approve, recommend or enter into any agreement in principle, acquisition agreement, merger agreement, letter of intent or other similar contract (whether or not binding) relating to any Competing Proposal (an “Alternative Acquisition Agreement”), other than a confidentiality agreement as permitted by Section 5.7(b), or (iv) authorize any of, or discussions commit or negotiations with, agree to do any Person relating to any Acquisition Proposal or Acquisition Inquiryof the foregoing.
(b) It Notwithstanding Section 5.7(a) above, at any time after the date of this Agreement and prior to obtaining the Required Shareholder Approval, the Company or the Board, directly or indirectly through its Representatives, may (i) engage in discussions or negotiations with any third party that has made (and not withdrawn) a bona fide unsolicited Competing Proposal in writing that the Board believes in good faith, after consultation with outside legal counsel and the Company’s outside financial advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) after making the determination in clause (i), furnish nonpublic information to any such third party (provided, however, that prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement on terms substantially consistent with the Confidentiality Agreement and all such information has previously been provided to Buyer or is provided to Buyer prior to or substantially concurrent with the time it is provided to such third party); provided, that (A) such Competing Proposal was made after the date of this Agreement and did not otherwise result from a material breach of this Section 5.7 by the Company, its Subsidiaries and their respective Affiliates and Representatives and (B) the Board determines, after consultation with legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
(c) Except as expressly permitted by this Section 5.7(c), neither the Board nor any committee thereof will (i) withdraw, modify, or publicly propose to withdraw or modify, or make a public statement inconsistent with, the Company Recommendation, (ii) approve or recommend, or publicly propose to approve or recommend, any Superior Proposal made or received after the date of this Agreement or authorize or agree to take any of the foregoing actions (any of the actions described in clauses (i) and (ii) of this Section 5.7(c), an “Adverse Recommendation Change”), or (iii) cause or permit the Company to enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Required Shareholder Approval, the Board will be permitted (A) with respect to any Competing Proposal that was made after the date of this Agreement and that did not otherwise result from a breach of this Section 5.7, to effect an Adverse Recommendation Change or terminate this Agreement to enter into a definitive agreement with respect to a Superior Proposal, subject to compliance with Section 5.7(d) and Section 7.1(e), if in either case the Board (1) has received a Competing Proposal that the Board determines in good faith constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by Buyer and Merger Sub pursuant to, Section 5.7(d), and (2) determines, after consultation with its outside legal advisors, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, or (B) in response to an Intervening Event, to effect an Adverse Recommendation Change described in clause (i) of such definition, if the Board determines, after consultation with its legal advisors, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
(d) The Company will not be entitled to effect an Adverse Recommendation Change or to terminate this Agreement as permitted under Section 5.7(c) with respect to a Superior Proposal unless (i) the Company has provided prompt written notice (in any event, within one Business Day (a “Notice of Superior Proposal”) to Buyer that the Company intends to take such action, attaching the definitive agreement relating to such Superior Proposal and describing the material terms and conditions of the Superior Proposal that is the basis of such action (it being understood that this Agreement limits such material terms need not include the rights identity of Stockholder only the third party), (ii) during the five-Business Day period following Buyer’s receipt of the Notice of Superior Proposal, the Company has, and has caused its Representatives to, negotiate with Buyer in good faith (to the extent Buyer desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that Stockholder is acting such Superior Proposal ceases to constitute a Superior Proposal, and (iii) following the end of the five-Business Day period, the Board has determined in Stockholder's capacity good faith, after consulting with outside legal counsel and the Company’s financial advisor, taking into account any changes to this Agreement proposed in writing by Buyer in response to the Notice of Superior Proposal or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law. Any material amendment to the financial terms or any other material amendment of such Superior Proposal will require a new Notice of Superior Proposal and the Company will be required to comply again with the requirements of this Section 5.7(d), except that references to the five-Business Day period above will be deemed to be references to a three-Business Day period.
(e) The Company will not be entitled to effect an Adverse Recommendation Change as permitted under Section 5.7(c) with respect to an Intervening Event unless (i) the Company has provided written notice (a “Notice of Intervening Event”) to Buyer that the Company intends to take such action and describing in reasonable detail the facts and circumstances of such Intervening Event, and has received advice from its outside legal counsel that the failure to effect an Adverse Company Recommendation Change with respect to such Intervening Event would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, (ii) during the five-Business Day period following Buyer’s receipt of the Notice of Intervening Event, the Company has, and has caused its Representatives to, negotiate with Buyer in good faith (to the extent Buyer desires to negotiate) to make such adjustments in the terms and conditions of this Agreement if Buyer, in its discretion, proposes to make such adjustments, and (iii) following the end of the five-Business Day period, the Board has determined and has received advice from its outside legal counsel, taking into account any changes to this Agreement proposed in writing by Buyer in response to the Notice of Intervening Event or otherwise, that the failure to effect an Adverse Recommendation Change described in clause (i) of such definition would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
(f) From and after the date of this Agreement, the Company will, as promptly as reasonably practicable (and in any event within one Business Day of receipt), advise Buyer of receipt by the Company of any Competing Proposal or any request for non-public information in connection with any Competing Proposal and the status and material terms and conditions of any such Competing Proposal or request, and will as promptly as reasonably practicable (and in any event within one Business Day of receipt) advise Buyer of any material amendments to any such Competing Proposal or request and keep Buyer promptly informed as to the details of any information requested of or provided by the Company and as to the details of all discussions or negotiations with respect to any such request, Competing Proposal or inquiry, including by providing Buyer a copy of all material documentation or correspondence relating thereto as soon as practicable (and in any event within one Business Day of receipt).
(g) Nothing contained in this Agreement will prohibit the Company or the Board, directly or indirectly through its Representatives, from (i) taking and disclosing to the Common Shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14e-2 or Rule 14D-9 promulgated under the Exchange Act or (ii) making any other communication to the Common Shareholders, in the case of each of clauses (i) and (ii) hereof, that the Board determines, after consultation with legal counsel, that failure to disclose such position or communicate with Common Shareholders would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
(h) For purposes of this Agreement, (i) “Competing Proposal” means, other than the Transactions, any proposal, offer or indication of interest making a direct or indirect proposal or offer by, any Person (other than a proposal or offer by Buyer or any of its Subsidiaries) relating to (A) a merger, reorganization, sale of assets, share exchange, consolidation, business combination, recapitalization, dissolution, liquidation, joint venture or similar transaction involving assets of the Company or any of its Subsidiaries equal to 15% or more of the fair market value of the Company’s consolidated assets or to which 15% or more of the Company’s net revenues or net income on a consolidated basis are attributable, (B) the acquisition (whether by direct or indirect merger, consolidation, equity investment, joint venture or otherwise) by any Person pursuant to which such Person would own 15% or more of the consolidated assets, net revenues or net income of the Company and its Subsidiaries, taken as a stockholder whole, (C) the acquisition in any manner, directly or indirectly, by any Person of 15% or more of the issued and outstanding Common Shares, or (D) any purchase, acquisition, tender offer or exchange offer that, if consummated, would result in any person beneficially owning (within the meaning of Section 13(d) of the Exchange Act) fifteen percent (15%) or more of the voting equity interests of the Company, and nothing herein shall be construed (ii) “Superior Proposal” means a Competing Proposal (with all percentages in the definition of Competing Proposal increased to 50%) made by a third party on terms that the Board determines, after consultation with the Company’s financial and legal advisors, are more favorable to the Company and the Common Shareholders than the Transactions after consideration by the Board of such factors as preventing Stockholder acting in its capacity as an officer the Board reasonably deems appropriate, including (a) financial considerations, (b) the identity of the third party making such Superior Proposal, (c) the anticipated timing, conditions (including any financing condition or director the reliability of any debt or equity funding commitments) and prospects for completion of such Superior Proposal, (d) the other terms and conditions of such Superior Proposal and the implications thereof on the Company, or as a trustee or fiduciary of any employee benefit plan or trustincluding relevant legal, from fulfilling the obligations regulatory and other aspects of such office Superior Proposal deemed relevant by the Board and (including, subject e) any revisions to the limitation contained in Section 6.2 terms of this Agreement and the Merger Agreement, the performance of obligations required proposed by the fiduciary obligations of Stockholder acting solely Buyer in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed writing (including pursuant to constitute a breach of this AgreementSection 5.7(d)).
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder shall not, and and, if not an individual, shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "“Representatives"”) not to, directly or indirectly, (A) solicit, initiate, endorse or knowingly encourage or knowingly facilitate the submission or announcement of any Acquisition Proposal or Acquisition Inquiry or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to any Person in connection with, or in response to, an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each of the foregoing clauses (A)-(D), in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal ) other than as permitted pursuant to the Company, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.
(b) . It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's ’s capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder or any of its Affiliates acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement; and it is further understood that notwithstanding anything to the contrary provided in this Agreement, the Stockholder or any of its Affiliates or Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with an Acquisition Proposal or Acquisition Inquiry in the event that the Company is permitted to take the actions set forth in the Merger Agreement with respect to such Acquisition Proposal or Acquisition Inquiry.
Appears in 1 contract
No Solicitation; Acquisition Proposals. (a) Stockholder During the period from and including the date of this Agreement to and including the Effective Time, Company shall not, and shall cause each of its controlled Affiliates, and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause authorize or permit any of its other Affiliates Subsidiaries, or Persons acting on any of its or their behalf affiliates, officers, directors, employees, agents or represen tatives (including employeeswithout limitation any investment banker, investment bankersfinancial advisor, attorneysattorney or accountant retained by Company or any of its Subsidiaries), accountants or other agents, "Representatives") not to, directly or indirectly, (A) solicit, initiate, endorse solicit or knowingly encourage (including by way of furnishing information or knowingly facilitate assistance), or take any other action to facilitate, any inquiries, any expression of interest or the submission or announcement making of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry or any proposals or offers that constitute or would may reasonably be expected to lead to to, an Acquisition Proposal, (B) furnish or disclose enter into or maintain or continue discussions or negotiate with any information regarding the Company person in furtherance of such inquiries or to any Person in connection with, or in response to, obtain an Acquisition Proposal or Acquisition Inquiry, (C) engage in discussions agree to or negotiations with endorse any Person with respect to any Acquisition Proposal or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that nothing in each this Agreement shall prohibit the Board of the foregoing clauses (A)-(D)Directors of Company, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal prior to the time at which this Agreement shall have been adopted by Company's stockholders, the Stockholder or any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives furnishing information to, immediately cease and cause to be terminated any existing solicitation ofor entering into, maintaining or continuing discussions or negotiations with, any Person person that makes an unsolicited, bona fide written Acquisition Proposal after the date hereof if, and to the extent that, the Board of Directors of Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that (i) such Acquisition Proposal would be more favorable to Company's stockholders than the Merger, and (ii) the failure to take such action would result in a breach by the Board of Directors of Company of its fiduciary duties to Company's stockholders under applicable law, and, prior to furnishing any non-public information to such person, Company receives from such person an executed confidentiality agreement with provisions generally comparable to the letter agreement relating to the furnishing of confidential information of Company to Parent referred to in the last sentence of Section 6.4. Company shall promptly (and, in any event within 24 hours) notify Parent after receipt of any Acquisition Proposal or any request for information relating to Company or any of its Subsidiaries or for access to the properties, books or records of Company or any of its Subsidiaries by any person who has informed Company that such person is considering making, or has made, an Acquisition InquiryProposal (which notice shall identify the person making, or considering making, such Acquisition Proposal and shall set forth, to the extent then known, the material terms of any Acquisition Proposal received), and Company shall keep Parent informed in reasonable detail of the terms, status and other pertinent details of any such Acquisition Proposal.
(b) It is understood that During the period from and including the date of this Agreement limits to and including the rights Effective Time, neither the Board of Stockholder only Directors of Company nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval of this Agreement or the transactions contemplated hereby or the recommendation referred to in the penultimate sentence of Section 6.3; provided, however, that nothing contained in this Agreement will prohibit the Board of Directors of Company from withdrawing or modifying the recommendation referred to in the penultimate sentence of Section 6.3 following the receipt by Company after the date hereof, under circumstances not involving any breach of the provisions of Section 6.7(a), of an unsolicited Acquisition Proposal if, and to the extent that Stockholder is acting in Stockholder's capacity as a stockholder that, the Board of the Directors of Company, after consultation with and nothing herein shall based upon the advice of independent legal counsel, determines in good faith that (i) the transactions contemplated by such Acquisition Proposal would be construed as preventing Stockholder acting more favorable to Company's stockholders than the transactions contemplated hereby, and (ii) the failure to take such action would result in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required breach by the Board of Directors of Company of its fiduciary obligations of Stockholder acting solely duties to Company's stockholders under applicable law.
(c) Nothing in its capacity as an officer or directorthis Section 6.7, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director by the Board of Directors of the Company pursuant to this Section 6.7, will (i) have any effect on Company's obligations under the first sentence of Section 6.3, which obligations shall be deemed absolute and unconditional, (ii) permit Company to constitute a breach terminate this Agreement, (iii) permit Company to enter into any agreement providing for any transaction contemplated by an Acquisition Proposal for as long as this Agreement remains in effect, or (iv) affect in any manner any other obligation of Company under this Agreement.
(d) For purposes of this Agreement, "Acquisition Proposal" means an inquiry, offer, proposal or other indication of interest regarding any of the following (other than the transactions contemplated hereby with Parent or Merger Sub) involving Company: (i) any merger, consolidation, share exchange, business combination, change-in-control or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of Company and its Subsidiaries, taken as a whole, in a single trans action or series of related transactions; (iii) any tender offer or exchange offer for 20% percent or more of the outstanding shares of capital stock of Company or the filing of a registration state ment under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.
Appears in 1 contract
No Solicitation; Acquisition Proposals. Between the date hereof and the Closing (a) Stockholder or earlier termination of this Agreement pursuant to ARTICLE VIII), each of Xxxxx Xxxxx, Xxxx Xxxxxxxxx and Xxxxxx Xxxxxxxxx and the Company shall not, and shall cause each of the Sellers’, the Company’s and its controlled Subsidiaries’ respective Affiliates, directors, employees, agents and its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf representatives (including employeesany investment banker, investment bankersfinancial advisor, attorneysattorney or accountant retained by Sellers, accountants the Company or other agents, "Representatives"any Subsidiary) not toto not, directly or indirectly, initiate, solicit or knowingly encourage any Acquisition Proposal, or furnish any information to any other Person with respect to, or agree to, any Acquisition Proposal. Between the date hereof and the Closing (Aor earlier termination of this Agreement pursuant to ARTICLE VIII), each Seller other than those listed in the preceding sentence shall not, and shall cause such Seller’s Affiliates and their respective directors, employees, agents and representatives (including any investment banker, financial advisor, attorney or accountant retained by such Seller) solicitto not, directly or indirectly, initiate, endorse solicit or knowingly encourage any Acquisition Proposal, or knowingly facilitate the submission furnish any information to any other Person with respect to, or announcement agree to, any Acquisition Proposal. Each Seller shall promptly notify Parent after receipt of any Acquisition Proposal or Acquisition Inquiry any request for information relating to the Company or any proposals or offers that constitute or would reasonably be expected to lead to an Acquisition Proposal, (B) furnish or disclose any information regarding the Company to Subsidiary by any Person in connection withwho has informed such Seller that such Person is considering making, or in response tohas made, an Acquisition Proposal (which notice shall identify the Person making, or considering making, such Acquisition Inquiry, (C) engage in discussions or negotiations with any Person with respect to Proposal and shall set forth the material terms of any Acquisition Proposal or Acquisition Inquiryreceived), or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement and each Seller shall keep Parent informed in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal; provided, however, that in each reasonable detail of the foregoing clauses (A)-(D)terms, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal to the Company, the Stockholder or status and other pertinent details of any of its Representatives shall not be prohibited from participating in any discussions or negotiations with respect to a possible tender and support, voting or similar agreement in connection with such Acquisition Proposal if and only if, and following the Company’s receipt of such Acquisition Proposal, the Company Board determines that the Company and its representatives may engage in such discussions or negotiations in response to such Acquisition Proposal pursuant to and in accordance with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiryrequest.
(b) It is understood that this Agreement limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder's capacity as a stockholder of the Company, and nothing herein shall be construed as preventing Stockholder acting in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciary) and no action taken solely in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Ladenburg Thalmann Financial Services Inc)
No Solicitation; Acquisition Proposals. (a) Stockholder shall notExcept as expressly permitted by this Section 7.3, neither Xxxxxx nor Hammer shall, and Xxxxxx shall cause each of its controlled Affiliatesthe Xxxxxx Subsidiaries and Hammer shall cause each of the Hammer Subsidiaries not to, and shall instruct and use its reasonable best efforts to cause its and their respective officers and directors (if applicable) not to, and will instruct and use commercially reasonable efforts to cause any of its other Affiliates or Persons acting on its or their behalf (including employees, investment bankers, attorneys, accountants or other agents, "Representatives") Representatives not to, directly or indirectly, (Ai) solicit, initiate, endorse initiate or knowingly encourage or knowingly facilitate any inquiry, proposal or offer with respect to, or the submission announcement, making or announcement of completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person (other than Xxxxxx, Hammer or their respective Representatives) any non-public information or data in furtherance of, any Acquisition Proposal or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Inquiry Proposal, (iii) enter into any definitive acquisition agreement, merger agreement, share exchange agreement, consolidation agreement, option agreement, joint venture agreement or partnership agreement (including any letter of intent or agreement in principle) relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to this Section 7.3(a)), (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement or any proposals Takeover Statute (other than to the extent the Hammer Board or offers the Xxxxxx Board, as applicable, determines in good faith (after consultation with outside counsel) that constitute or failure to take any of such actions under clause (iv) would reasonably be expected to lead be inconsistent with its fiduciary duties under applicable Law) or (v) agree, approve, recommend or propose to an do any of the foregoing. Each of Hammer and Xxxxxx shall, and shall cause each of the Hammer Subsidiaries and the Xxxxxx Subsidiaries, respectively, and shall use its reasonable best efforts to cause its and their Representatives to, (A) immediately cease and cause to be terminated all existing negotiations with any Person and its Representatives (other than the Parties or any of their Representatives) conducted heretofore with respect to any Acquisition Proposal, (B) furnish enforce any confidentiality or disclose standstill agreement or provisions of similar effect (subject to the parenthetical in clause (iv) of this Section 7.3(a)) to which Hammer or Xxxxxx, as applicable, or any information regarding the Company of their subsidiaries is a party or of which Hammer or Xxxxxx, as applicable, or any of their subsidiaries is a beneficiary with regards to any Person in connection withAcquisition Proposal, or in response to, an Acquisition Proposal or Acquisition Inquiry, and (C) engage in discussions request the prompt return or negotiations with destruction, to the extent permitted by any confidentiality agreement, of all non-public information or data previously furnished to any such Person and its Representatives with respect to any Acquisition Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person, its subsidiaries or Acquisition Inquiry, or (D) approve, recommend or enter into, any letter of intent or similar document, agreement or commitment, or agreement in principle (whether written or oral, binding or nonbinding) their respective Representatives with respect to any Acquisition Proposal. Notwithstanding the foregoing, if, at any time following the date of this Agreement and prior to obtaining the Hammer Stockholder Approval or the Xxxxxx Stockholder Approval, as applicable, (1) Hammer or Xxxxxx, as applicable, receives a written Acquisition Proposal that was not the result of a violation of this Section 7.3(a) and (2) the Hammer Board or the Xxxxxx Board, as applicable, determines in good faith (after consultation with outside counsel and a financial advisor) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and determines in good faith (after consultation with outside counsel) that its failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then such Party may (and may authorize its Subsidiaries and its Representatives to) (x) furnish non-public information or data with respect to itself and its subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided, that (i) any non-public information or data provided to any such Person given such access shall have previously been provided to the other Party or shall be provided (to the extent permitted by applicable Law) to the other Party prior to or substantially concurrently with the time it is provided to such Person and (ii) no non-public information or data with respect to the other Party shall be provided to any such Person, and (y) participate in discussions and negotiations with the Person making such Acquisition Proposal (and such Person’s Representatives) regarding such Acquisition Proposal solely to clarify and understand the terms of an Acquisition Proposal so as to determine whether such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal.
(b) Except as provided in Section 7.3(c), neither the Hammer Board nor the Xxxxxx Board shall (i) fail to make or shall withdraw (or modify or qualify in any manner adverse to the other Party or publicly propose to withdraw, modify or qualify in any manner adverse to the other Party) the Hammer Board Recommendation or the Xxxxxx Board Recommendation, respectively, or the determination of the advisability to its stockholders of the Merger, the issuance of Hammer Common Stock in the Merger, the Amended and Restated Hammer Charter and the other transactions contemplated hereby, as applicable, (ii) adopt, approve, or publicly recommend, endorse or otherwise declare advisable any Acquisition Proposal, (iii) fail to include the Hammer Board Recommendation or the Xxxxxx Board Recommendation, respectively, in whole or in part in the Joint Proxy Statement or any filing or amendment or supplement relating thereto, (iv) fail to recommend against any then-pending tender or exchange offer that constitutes an Acquisition Proposal within five (5) Business Days after it is announced or (v) fail, within ten (10) Business Days of a request by the other Party following the public announcement of an Acquisition Proposal, to reaffirm the Hammer Board Recommendation or the Xxxxxx Board Recommendation, as applicable (each such action set forth in this Section 7.3(b) being referred to herein as an “Adverse Recommendation Change”)
(c) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Hammer Stockholder Approval or the Xxxxxx Stockholder Approval, as applicable, and following the compliance with this Section 7.3(c), the Hammer Board or the Xxxxxx Board may, if such Board determines in good faith (after consultation with outside counsel) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, make an Adverse Recommendation Change; provided, that prior to effecting an Adverse Recommendation Change, (i) Hammer or Xxxxxx, as applicable, shall notify the other Party in writing, at least five (5) Business Days prior to effecting such Adverse Recommendation Change (the “Notice Period”), of its intention to effect such Adverse Recommendation Change (which notice shall specify in reasonable detail the basis for the Adverse Recommendation Change and, if such Adverse Recommendation Change is based upon receipt of a Superior Proposal, shall include the material terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal and include copies of the current drafts of all material agreements between such Party and the party making such Superior Proposal and any other material documents or agreements that relate to such Superior Proposal (it being understood and agreed that such notice or the public disclosure by such Party of such notice shall not in and of itself constitute an Adverse Recommendation Change)), (ii) during the Notice Period, the Party providing such notice shall negotiate with the other Party in good faith (to the extent such other Party wishes to negotiate) to make such adjustments to the terms and conditions of this Agreement such that failure to make an Adverse Recommendation Change would no longer reasonably be expected to be inconsistent with such Party’s Board’s fiduciary duties under applicable Law, and (iii) the applicable Party’s Board shall determine, after the close of business on the last day of the Notice Period, in good faith (after consultation with outside counsel and after giving effect to any adjustments proposed by the other Party in writing during the Notice Period) that failure to make an Adverse Recommendation Change would reasonably be expected to be inconsistent with such Board’s fiduciary duties under applicable Law; provided, however, that in each the event of any material change to the foregoing clauses (A)-(D)material terms of such Superior Proposal, Hammer or Xxxxxx, as applicable, shall, in the event a Third Party submits an unsolicited bona fide written Acquisition Proposal each case, have delivered to the Companyother Party an additional notice consistent with that described in clause (i) above and the Notice Period shall have recommenced (in which case such Notice Period shall be for three (3) Business Days instead of five (5) Business Days).
(d) Hammer or Xxxxxx, as applicable, shall promptly (and in any event, within one (1) Business Day) notify the Stockholder other Party after it or any of its subsidiaries or any of their respective Representatives shall not be prohibited from participating in has received any Acquisition Proposal or inquiry, proposal or offer to enter into or seeking to have discussions or negotiations with respect relating to a possible tender Acquisition Proposal. Such notice to the other Party shall indicate the identity of the Person making and support, voting or similar agreement in connection with such Acquisition Proposal if include the material terms and only if, and following the Company’s receipt conditions of such Acquisition Proposal, inquiry, proposal or offer (including a complete copy thereof if in writing and any related documents or correspondence). Following the Company Board determines that date hereof, each Party shall keep the Company other Party reasonably informed orally and its representatives may engage in such writing on a current basis (and in any event, no later than one (1) Business Day) of any material developments, discussions or negotiations in response to regarding any Acquisition Proposal including providing a copy of all material documentation (including drafts) or material correspondence with respect thereto and upon the request of such other Party shall apprise the other Party of the status and details of such Acquisition Proposal pursuant Proposal. Each Party agrees that it and its subsidiaries will not enter into any agreement with any Person subsequent to and the date hereof which prohibits such Party from providing any information to the other Party in accordance with, or from otherwise complying with the terms of Section 6.2(a) of the Merger Agreement. Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquirythis Section 7.3.
(be) It is understood that Nothing contained in this Agreement limits Section 7.3 shall prohibit Hammer or the rights Hammer Board, or Xxxxxx or the Xxxxxx Board, respectively, from (i) issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or taking and disclosing a position contemplated by Rule 14e-2(a), 14d-9 or Item 1012(a) of Stockholder only Regulation M-A under the Exchange Act, or (ii) making any disclosure to the extent that Stockholder is acting stockholders of Hammer or Xxxxxx, as applicable, if, in Stockholder's capacity as a stockholder the good faith judgment of the Companysuch Board (after consultation with outside counsel), failure to so disclose would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and nothing herein shall be construed as preventing Stockholder acting disclosure referred to in its capacity as an officer or director of the Company, or as a trustee or fiduciary of any employee benefit plan or trust, from fulfilling the obligations of such office clauses (including, subject to the limitation contained in Section 6.2 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder acting solely in its capacity as an officer or director, trustee or fiduciaryi) and no action taken solely in any such capacity as an officer or director of the Company (ii) shall not be deemed to constitute a breach be an Adverse Recommendation Change so long as (A) any such disclosure includes the Hammer Board Recommendation or the Xxxxxx Board Recommendation, as applicable, without any modification or qualification thereof or continues the prior recommendation of the Hammer Board or the Xxxxxx Board, respectively, and (B) does not contain an express Adverse Recommendation Change; provided, that in no event shall this Section 7.3(e) affect either Party’s obligations specified in Section 7.3(b).
(f) For purposes of this Agreement.:
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Samples: Merger Agreement (Almost Family Inc)
