Common use of No Solicitation by Company Clause in Contracts

No Solicitation by Company. (a) Until the earlier of the Effective Time or a valid termination of this Agreement pursuant to Article VIII, Company will ------------ not, and will not authorize, direct or knowingly permit any of its officers, directors, employees, affiliates, investment bankers, attorneys, accountants or other agents, advisors or representatives (collectively, "Representatives") to, directly or indirectly, (i) --------------- solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Company Takeover Proposal (as defined below), (ii) participate in any discussions or negotiations with any person regarding, or furnish to any person any information with respect to, or take any other action that would reasonably be expected to facilitate any inquiry or proposal that constitutes or would reasonably be expected to lead to, any Company Takeover Proposal, (iii) authorize, approve or recommend any Company Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting or providing for any Company Takeover Proposal; provided, however, that -------- ------- nothing in this Section 6.02 or elsewhere in this Agreement or in the ------------ Confidentiality Agreement (as defined in Section 9.01) shall prohibit ------------ Company's Board of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.02; and provided, further, that ------------ -------- ------- nothing in this Section 6.02 or elsewhere in this Agreement or in the ------------ Confidentiality Agreement shall prohibit Company, before the adoption of this Agreement by the stockholders of Company, from furnishing information regarding Company or entering into negotiations or discussions with, any person in response to a Company Takeover Proposal made, submitted or announced by such person (and not withdrawn) or, subject to the provisions of Section 6.05, endorsing and/or ------------ recommending, or, simultaneously with a termination of this Agreement pursuant to Section 8.01(h), entering into an agreement accepting or --------------- providing for, a Company Superior Offer (as defined in Section ------- 6.05(b)), and any such actions enumerated in this proviso shall not be ------- considered a breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) such Company Takeover Proposal is not attributable to a material breach by Company of this Section 6.02(a) or Section 6.05; (2) the Board of Directors of Company --------------- ------------- concludes in good faith, after consultation with its outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Board of Directors of Company to Company stockholders under applicable law; (3) prior to furnishing any such information to, or entering into discussions or negotiations with, such person, Company gives Parent written notice of the identity of such person, the terms and conditions of such Company Takeover Proposal and Company's intention to furnish information to, or enter into discussions or negotiations with, such person; (4) Company receives from such person an executed confidentiality agreement which shall not in any way restrict Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such person by or on behalf of Company and other terms no less favorable to Company than those set forth in the Confidentiality Agreement; and (5) contemporaneously with furnishing any such information to such person, Company furnishes such information to Parent (to the extent that such information has not been previously furnished by Company to Parent). (b) Company and its Representatives shall immediately cease and cause to be terminated any and all existing discussions, negotiations, exchanges of information and other activities with respect to any Company Takeover Proposal pending as of the date of this Agreement. Promptly following the execution and delivery of this Agreement, Company shall (i) inform each of its directors and officers and financial, legal, accounting and other advisors retained or involved in the transactions contemplated by this Agreement of the obligations undertaken in this Section 6.02 and in the Confidentiality ------------ Agreement and (ii) request each person that has heretofore executed a confidentiality or non-disclosure agreement in connection with its consideration of acquiring Company or any of its Subsidiaries to return to Company or otherwise dispose of all confidential information furnished to such person by or on behalf of Company or any of its Subsidiaries during the one-year period prior to the date of this Agreement in connection with such person's consideration of acquiring or engaging in a merger or other business combination transaction with Company or any of its Subsidiaries. Company shall immediately notify Parent if any proposals or offers constituting a Company Takeover Proposal are received by, any non-public information in connection with any Company Takeover Proposal is requested from, or any discussions or negotiations with respect to a Company Takeover Proposal are sought to be initiated or continued with, Company's officers or directors or other individuals involved on behalf of Company in the negotiation of the transactions contemplated by this Agreement, or, to the knowledge of the foregoing persons, any of Company's other Representatives, indicating, in connection with such notice, the name of the person making the inquiry, proposal or offer and the material terms and conditions of any such proposals or offers. Thereafter (i) Company shall provide Parent with a true and complete copy of such Company Takeover Proposal or communication (if it is in writing) and (ii) Company shall otherwise keep Parent informed, on a current basis, with respect to the status and terms of any such proposal or offer and the status of any such negotiations or discussions. (c) Company and Parent agree that irreparable damage would occur in the event that the provisions of this Section 6.02 are not ------------ performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to seek an injunction or injunctions to prevent breaches of this Section 6.02 and to enforce specifically the terms and ------------ provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which the parties may be entitled at law or in equity. (d) For purposes of this Agreement, "Company Takeover ---------------- Proposal" means any offer or proposal (other than an offer or proposal -------- by Parent or an affiliate of Parent) for (i) a merger or other business combination involving Company after which the stockholders of Company immediately prior to such merger or business combination would own less than eighty percent (80%) of the voting securities of the surviving company in such merger or business combination and would own less than eighty percent (80%) of the voting securities of the parent of the surviving company in such merger or business combination, or (ii) the acquisition by a person or "group" as defined under Section 13(d) of the Exchange Act (other than an acquisition by Parent or an affiliate of Parent) of twenty percent (20%) or more of the outstanding shares of capital stock of Company, or (iii) the acquisition (other than an acquisition by Parent or an affiliate of Parent) of all or substantially all of the assets of Company.

No Solicitation by Company. (a) Until the earlier of the Effective Time or a valid termination of this Agreement pursuant to Article VIII, Company will ------------ not, and will not authorize, direct or knowingly permit any of its officers, directors, employees, affiliates, investment bankers, attorneys, accountants or other agents, advisors or representatives (collectively, "Representatives") to, directly or indirectly, (i) --------------- solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Company Takeover Proposal (as defined below), (ii) participate in any discussions or negotiations with any person regarding, or furnish to any person any information with respect to, or take any other action that would reasonably be expected to facilitate any inquiry or proposal that constitutes or would reasonably be expected to lead to, any Company Takeover Proposal, (iii) authorize, approve or recommend any Company Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting or providing for any Company Takeover Proposal; provided, however, that -------- ------- nothing in this Section 6.02 or elsewhere in this Agreement or in the ------------ Confidentiality Agreement (as defined in Section 9.01) shall prohibit ------------ Company's Board of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.02; and provided, further, that ------------ -------- ------- nothing in this Section 6.02 or elsewhere in this Agreement or in the ------------ Confidentiality Agreement shall prohibit Company, before the adoption of this Agreement by the stockholders of Company, from furnishing information regarding Company or entering into negotiations or discussions with, any person in response to a Company Takeover Proposal made, submitted or announced by such person (and not withdrawn) or, subject to the provisions of Section 6.05, endorsing and/or ------------ recommending, or, simultaneously with a termination of this Agreement pursuant to Section 8.01(h), entering into an agreement accepting or --------------- providing for, a Company Superior Offer (as defined in Section ------- 6.05(b)), and any such actions enumerated in this proviso shall not be ------- -------- considered a breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) such Company Takeover Proposal is not attributable to a material breach by Company of this Section 6.02(a) or Section 6.05; (2) the Board of Directors of Company --------------- ------------- ------------ concludes in good faith, after consultation with its outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Board of Directors of Company to Company stockholders under applicable law; (3) prior to furnishing any such information to, or entering into discussions or negotiations with, such person, Company gives Parent written notice of the identity of such person, the terms and conditions of such Company Takeover Proposal and Company's intention to furnish information to, or enter into discussions or negotiations with, such person; (4) Company receives from such person an executed confidentiality agreement which shall not in any way restrict Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such person by or on behalf of Company and other terms no less favorable to Company than those set forth in the Confidentiality Agreement; and (5) contemporaneously with furnishing any such information to such person, Company furnishes such information to Parent (to the extent that such information has not been previously furnished by Company to Parent). (b) Company and its Representatives shall immediately cease and cause to be terminated any and all existing discussions, negotiations, exchanges of information and other activities with respect to any Company Takeover Proposal pending as of the date of this Agreement. Promptly following the execution and delivery of this Agreement, Company shall (i) inform each of its directors and officers and financial, legal, accounting and other advisors retained or involved in the transactions contemplated by this Agreement of the obligations undertaken in this Section 6.02 and in the Confidentiality ------------ Agreement and (ii) request each person that has heretofore executed a confidentiality or non-disclosure agreement in connection with its consideration of acquiring Company or any of its Subsidiaries to return to Company or otherwise dispose of all confidential information furnished to such person by or on behalf of Company or any of its Subsidiaries during the one-year period prior to the date of this Agreement in connection with such person's consideration of acquiring or engaging in a merger or other business combination transaction with Company or any of its Subsidiaries. Company shall immediately notify Parent if any proposals or offers constituting a Company Takeover Proposal are received by, any non-public information in connection with any Company Takeover Proposal is requested from, or any discussions or negotiations with respect to a Company Takeover Proposal are sought to be initiated or continued with, Company's officers or directors or other individuals involved on behalf of Company in the negotiation of the transactions contemplated by this Agreement, or, to the knowledge of the foregoing persons, any of Company's other Representatives, indicating, in connection with such notice, the name of the person making the inquiry, proposal or offer and the material terms and conditions of any such proposals or offers. Thereafter (i) Company shall provide Parent with a true and complete copy of such Company Takeover Proposal or communication (if it is in writing) and (ii) Company shall otherwise keep Parent informed, on a current basis, with respect to the status and terms of any such proposal or offer and the status of any such negotiations or discussions. (c) Company and Parent agree that irreparable damage would occur in the event that the provisions of this Section 6.02 are not ------------ performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to seek an injunction or injunctions to prevent breaches of this Section 6.02 and to enforce specifically the terms and ------------ provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which the parties may be entitled at law or in equity. (d) For purposes of this Agreement, "Company Takeover ---------------- Proposal" means any offer or proposal (other than an offer or proposal -------- by Parent or an affiliate of Parent) for (i) a merger or other business combination involving Company after which the stockholders of Company immediately prior to such merger or business combination would own less than eighty percent (80%) of the voting securities of the surviving company in such merger or business combination and would own less than eighty percent (80%) of the voting securities of the parent of the surviving company in such merger or business combination, or (ii) the acquisition by a person or "group" as defined under Section 13(d) of the Exchange Act (other than an acquisition by Parent or an affiliate of Parent) of twenty percent (20%) or more of the outstanding shares of capital stock of Company, or (iii) the acquisition (other than an acquisition by Parent or an affiliate of Parent) of all or substantially all of the assets of Company.

No Solicitation by Company. (a) Until the earlier of the Effective Time or a valid termination of this Agreement pursuant to Article VIII, Company will ------------ not, and will not authorize, direct or knowingly permit any of its officers, directors, employees, affiliates, investment bankers, attorneys, accountants or other agents, advisors or representatives (collectively, "Representatives") to, directly or indirectly, (i) --------------- solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Company Takeover Proposal (as defined below), (ii) participate in any discussions or negotiations with any person regarding, or furnish to any person any information with respect to, or take any other action that would reasonably be expected to facilitate any inquiry or proposal that constitutes or would reasonably be expected to lead to, any Company Takeover Proposal, (iii) authorize, approve or recommend any Company Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting or providing for any Company Takeover Proposal; provided, however, that -------- ------- nothing in this Section 6.02 or elsewhere in this Agreement or in the ------------ Confidentiality Agreement (as defined in Section 9.01) shall prohibit ------------ Company's Board of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.02; and provided, further, that ------------ -------- ------- nothing in this Section 6.02 or elsewhere in this Agreement or in the ------------ Confidentiality Agreement shall prohibit Company, before the adoption of this Agreement by the stockholders of Company, from furnishing information regarding Company or entering into negotiations or discussions with, any person in response to a Company Takeover Proposal made, submitted or announced by such person (and not withdrawn) or, subject to the provisions of Section 6.05, endorsing and/or ------------ recommending, or, simultaneously with a termination of this Agreement pursuant to Section 8.01(h), entering into an agreement accepting or --------------- providing for, a Company Superior Offer (as defined in Section ------- 6.05(b)), and any such actions enumerated in this proviso shall not be ------- considered a breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) such Company Takeover Proposal is not attributable to a material breach by Company of this Section 6.02(a) or Section 6.05; (2) the Board of Directors of Company --------------- ------------- concludes in good faith, after consultation with its outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Board of Directors of Company to Company stockholders under applicable law; (3) prior to furnishing any such information to, or entering into discussions or negotiations with, such person, Company gives Parent written notice of the identity of such person, the terms and conditions of such Company Takeover Proposal and Company's intention to furnish information to, or enter into discussions or negotiations with, such person; (4) Company receives from such person an executed confidentiality agreement which shall not in any way restrict Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such person by or on behalf of Company and other terms no less favorable to Company than those set forth in the Confidentiality Agreement; and (5) contemporaneously with furnishing any such information to such person, Company furnishes such information to Parent (to the extent that such information has not been previously furnished by Company to Parent). (b) Company and its Representatives shall immediately cease and cause to be terminated any and all existing discussions, negotiations, exchanges of information and other activities with respect to any Company Takeover Proposal pending as of the date of this Agreement. Promptly following the execution and delivery of this Agreement, Company shall (i) inform each of its directors and officers and financial, legal, accounting and other advisors retained or involved in the transactions contemplated by this Agreement of the obligations undertaken in this Section 6.02 and in the Confidentiality ------------ Agreement and (ii) request each person that has heretofore executed a confidentiality or non-disclosure agreement in connection with its consideration of acquiring Company or any of its Subsidiaries to return to Company or otherwise dispose of all confidential information furnished to such person by or on behalf of Company or any of its Subsidiaries during the one-year period prior to the date of this Agreement in connection with such person's consideration of acquiring or engaging in a merger or other business combination transaction with Company or any of its Subsidiaries. Company shall immediately notify Parent if any proposals or offers constituting a Company Takeover Proposal are received by, any non-public information in connection with any Company Takeover Proposal is requested from, or any discussions or negotiations with respect to a Company Takeover Proposal are sought to be initiated or continued with, Company's officers or directors or other individuals involved on behalf of Company in the negotiation of the transactions contemplated by this Agreement, or, to the knowledge of the foregoing persons, any of Company's other Representatives, indicating, in connection with such notice, the name of the person making the inquiry, proposal or offer and the material terms and conditions of any such proposals or offers. Thereafter (i) Company shall provide Parent with a true and complete copy of such Company Takeover Proposal or communication (if it is in writing) and (ii) Company shall otherwise keep Parent informed, on a current basis, with respect to the status and terms of any such proposal or offer and the status of any such negotiations or discussions. (c) Company and Parent agree that irreparable damage would occur in the event that the provisions of this Section 6.02 are not ------------ performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to seek an injunction or injunctions to prevent breaches of this Section 6.02 and to enforce specifically the terms and ------------ provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which the parties may be entitled at law or in equity. (d) For purposes of this Agreement, "Company Takeover ---------------- Proposal" means any offer or proposal (other than an offer or proposal -------- by Parent or an affiliate of Parent) for (i) a merger or other business combination involving Company after which the stockholders of Company immediately prior to such merger or business combination would own less than eighty percent (80%) of the voting securities of the surviving company in such merger or business combination and would own less than eighty percent (80%) of the voting securities of the parent of the surviving company in such merger or business combination, or (ii) the acquisition by a person or "group" as defined under Section 13(d) of the Exchange Act (other than an acquisition by Parent or an affiliate of Parent) of twenty percent (20%) or more of the outstanding shares of capital stock of Company, or (iii) the acquisition (other than an acquisition by Parent or an affiliate of Parent) of all or substantially all of the assets of Company.Superior

No Solicitation by Company. (a) Until the earlier of the Effective Time or a valid termination of this Agreement pursuant to Article VIII, Company will ------------ not, and will not authorize, direct or knowingly permit any of its officers, directors, employees, affiliates, investment bankers, attorneys, accountants or other agents, advisors or representatives (collectively, "Representatives") to, directly or indirectly, (i) --------------- solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Company Takeover Proposal (as defined below), (ii) participate in any discussions or negotiations with any person regarding, or furnish to any person any information with respect to, or take any other action that would reasonably be expected to facilitate any inquiry or proposal that constitutes or would reasonably be expected to lead to, any Company Takeover Proposal, (iii) authorize, approve or recommend any Company Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting or providing for any Company Takeover Proposal; provided, however, that -------- ------- nothing in this Section 6.02 or elsewhere in this Agreement or in the ------------ Confidentiality Agreement (as defined in Section 9.01) shall prohibit ------------ Company's Board of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.02; and provided, further, that ------------ -------- ------- nothing in this Section 6.02 or elsewhere in this Agreement or in the ------------ Confidentiality Agreement shall prohibit Company, before the adoption of this Agreement by the stockholders of Company, from furnishing information regarding Company or entering into negotiations or discussions with, any person in response to a Company Takeover Proposal made, submitted or announced by such person (and not withdrawn) or, subject to the provisions of Section 6.05, endorsing and/or ------------ recommending, or, simultaneously with a termination of this Agreement pursuant to Section 8.01(h), entering into an agreement accepting or --------------- providing for, a Company Superior Offer (as defined in Section ------- 6.05(b)), and any such actions enumerated in this proviso shall not be ------- considered a breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) such Company Takeover Proposal is not attributable to a material breach by Company of this Section 6.02(a) or Section 6.05; (2) the Board of Directors of Company --------------- ------------- concludes in good faith, after consultation with its outside legal counsel, that failure to take such action would be inconsistent with the fiduciary obligations of the Board of Directors of Company to Company stockholders under applicable law; (3) prior to furnishing any such information to, or entering into discussions or negotiations with, such person, Company gives Parent written notice of the identity of such person, the terms and conditions of such Company Takeover Proposal and Company's A-29 30 intention to furnish information to, or enter into discussions or negotiations with, such person; (4) Company receives from such person an executed confidentiality agreement which shall not in any way restrict Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such person by or on behalf of Company and other terms no less favorable to Company than those set forth in the Confidentiality Agreement; and (5) contemporaneously with furnishing any such information to such person, Company furnishes such information to Parent (to the extent that such information has not been previously furnished by Company to Parent). (b) Company and its Representatives shall immediately cease and cause to be terminated any and all existing discussions, negotiations, exchanges of information and other activities with respect to any Company Takeover Proposal pending as of the date of this Agreement. Promptly following the execution and delivery of this Agreement, Company shall (i) inform each of its directors and officers and financial, legal, accounting and other advisors retained or involved in the transactions contemplated by this Agreement of the obligations undertaken in this Section 6.02 and in the Confidentiality ------------ Agreement and (ii) request each person that has heretofore executed a confidentiality or non-disclosure agreement in connection with its consideration of acquiring Company or any of its Subsidiaries to return to Company or otherwise dispose of all confidential information furnished to such person by or on behalf of Company or any of its Subsidiaries during the one-year period prior to the date of this Agreement in connection with such person's consideration of acquiring or engaging in a merger or other business combination transaction with Company or any of its Subsidiaries. Company shall immediately notify Parent if any proposals or offers constituting a Company Takeover Proposal are received by, any non-public information in connection with any Company Takeover Proposal is requested from, or any discussions or negotiations with respect to a Company Takeover Proposal are sought to be initiated or continued with, Company's officers or directors or other individuals involved on behalf of Company in the negotiation of the transactions contemplated by this Agreement, or, to the knowledge of the foregoing persons, any of Company's other Representatives, indicating, in connection with such notice, the name of the person making the inquiry, proposal or offer and the material terms and conditions of any such proposals or offers. Thereafter (i) Company shall provide Parent with a true and complete copy of such Company Takeover Proposal or communication (if it is in writing) and (ii) Company shall otherwise keep Parent informed, on a current basis, with respect to the status and terms of any such proposal or offer and the status of any such negotiations or discussions. (c) Company and Parent agree that irreparable damage would occur in the event that the provisions of this Section 6.02 are not ------------ performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to seek an injunction or injunctions to prevent breaches of this Section 6.02 and to enforce specifically the terms and ------------ provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which the parties may be entitled at law or in equity. (d) For purposes of this Agreement, "Company Takeover ---------------- Proposal" means any offer or proposal (other than an offer or proposal -------- by Parent or an affiliate of Parent) for (i) a merger or other business combination involving Company after which the stockholders of Company immediately prior to such merger or business combination would own less than eighty percent (80%) of the voting securities of the surviving company in such merger or business combination and would own less than eighty percent (80%) of the voting securities of the parent of the surviving company in such merger or business combination, or (ii) the acquisition by a person or "group" as defined under Section 13(d) of the Exchange Act (other than an acquisition by Parent or an affiliate of Parent) of twenty percent (20%) or more of the outstanding shares of capital stock of Company, or (iii) the acquisition (other than an acquisition by Parent or an affiliate of Parent) of all or substantially all of the assets of Company.