No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Section 6.02, the Company shall and shall cause each of its Subsidiaries to, and its and their respective directors, officers, and employees to, and shall use its reasonable best efforts to cause its other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during the period from the date of this Agreement through the earlier of the Closing and the termination of this Agreement pursuant to Article VIII, not, directly or indirectly, (A) solicit, knowingly encourage, initiate, or take any action to facilitate the submission of any inquiry or the making of any proposal or offer, in each case that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (B) engage in or otherwise participate in any discussions or negotiations regarding any submission, proposal, announcement, offer, or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any non-public information in connection with a Takeover Proposal or any such submission, proposal, announcement, offer, or inquiry, (C) enter into any Company Acquisition Agreement, (D) terminate, waive, amend, release or modify any provision of any confidentiality agreement to which the Company or any Subsidiary of the Company is a party in connection with any Takeover Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counsel) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, deliver a request to each Person that has executed a confidentiality agreement with the Company during the eighteen (18) months prior to the date of this Agreement or has received non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return or destroy any non-public information previously furnished or made available to such Person or any of its Representatives on behalf of the Company or its Representatives. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Company may waive, and may choose not to enforce, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, if and only to the extent that the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable Law.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Aspen Insurance Holdings LTD), Agreement and Plan of Merger (Aspen Insurance Holdings LTD), Agreement and Plan of Merger (Aspen Insurance Holdings LTD)
No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Section 6.025.02, the Company shall and shall cause each of its Subsidiaries to, and its and their respective directors, officers, employees and employees directors to, and shall use its reasonable best efforts to cause instruct and direct its other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal or a Financing Proposal and (ii) during the period from the date of this Agreement through hereof until the earlier of Effective Time (or, if earlier, the Closing and the valid termination of this Agreement pursuant to in accordance with Article VIIIVII), not, directly or indirectly, (A) solicit, initiate or knowingly encourage, initiate, encourage or take any action to knowingly facilitate the submission of any inquiry or the making of any proposal or offer, in each case that constitutes, or would reasonably be expected to lead to, a Takeover Proposal or a Financing Proposal, (B) engage in or otherwise participate in any discussions or negotiations regarding any submissionregarding, proposal, announcement, offer, or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any non-public information in connection with or access to its properties or assets for the purpose of encouraging or facilitating, a Takeover Proposal or any such submission, proposal, announcement, offer, a Financing Proposal or inquiry, (C) enter into any Company Acquisition Agreement or Company Financing Agreement; provided that, if the Closing has not occurred on or prior to the date that is 30 days prior to the Outside Date, the Company and any of its Subsidiaries and its and their officers, employees, directors and Representatives may, with the prior written consent (Dnot to be unreasonably withheld, conditioned or delayed) of Parent, solicit, initiate and knowingly encourage and knowingly facilitate the making of a Financing Proposal and engage in or otherwise participate in any discussions and negotiations regarding, and furnish to any other Person any information and access to its properties and assets for the purpose of encouraging or facilitating, a Financing Proposal. The Company shall promptly request that each Person (other than Parent, Merger Sub and their Representatives) that has, on or prior to the date hereof, executed a confidentiality agreement in connection with its consideration of a Takeover Proposal (or, if requested by Parent, Financing Proposal) to promptly return or destroy all confidential information furnished to such Person by or on behalf of the Company or any of its Subsidiaries or Representatives and shall promptly terminate access to all data rooms furnished in connection therewith. The Company agrees that neither it nor any of its Subsidiaries shall terminate, waive, amend, release or modify any provision of any confidentiality existing standstill or similar agreement to which it or one of its Subsidiaries is a party, except that prior to the Company or any Subsidiary delivery and effectiveness of the Company is a party in connection with any Takeover Proposal or any submissionStockholder Consent, proposalif after consultation with, offerand taking into account the advice of, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless outside legal counsel, the Company Board or the Special Committee determines in good faith (after consultation with its outside counsel) that the failure to do so take such action would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, deliver a request to each Person that has executed a confidentiality agreement with the Company during the eighteen (18) months prior to the date of this Agreement or has received non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return or destroy any non-public information previously furnished or made available to such Person or any of its Representatives on behalf of the Company or its Representatives. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Company may waive, and may choose not to enforce, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, if and only to the extent that the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to do so would be inconsistent with its directors’ fiduciary duties under applicable Law, the Company may waive any such standstill provision.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Trott Byron D), Agreement and Plan of Merger (Weber Inc.)
No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Section 6.02, the Company shall and shall cause each of its Subsidiaries to, and its and their respective directors, officers, and employees to, and shall use its reasonable best efforts to cause its other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during the period from From the date of this Agreement through until the earlier of the Closing and Effective Time or the date of termination of this Agreement pursuant to in accordance with Article VIII, the Company shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or permit any Representatives of the Company or any Company Subsidiary to, directly or indirectly, (Ai) solicit, initiate or knowingly encouragefacilitate, initiate, induce or take any action to facilitate encourage the submission of, any Company Takeover Proposal; (ii) except as permitted by Section 8.01(h), enter into any letter of intent or agreement in principle or any inquiry Contract (other than a confidentiality agreement in accordance with this Section 5.02(a)) providing for, relating to or the making of in connection with, any Company Takeover Proposal or any proposal or offer, in each case that constitutes, or would could reasonably be expected to lead to, to a Company Takeover Proposal; (iii) enter into, (B) engage in continue or otherwise participate in any discussions or negotiations regarding with any submission, proposal, announcement, offer, or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish Third Party with respect to any other Person Company Takeover Proposal; or (iv) furnish any non-public information in connection with a Takeover Proposal or any such submission, proposal, announcement, offer, or inquiry, (C) enter into any Company Acquisition Agreement, (D) terminate, waive, amend, release or modify any provision of any confidentiality agreement to which regarding the Company or any Subsidiary of the Company is a party Subsidiaries, or afford access to the properties, books and records of the Company, to any Third Party in connection with any Takeover Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead in response to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counsel) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal; provided, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreementhowever, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, deliver a request to each Person that has executed a confidentiality agreement with the Company during the eighteen (18) months prior to the date of nothing contained in this Agreement or has received non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return or destroy any non-public information previously furnished or made available to such Person or any of its Representatives on behalf of shall prohibit the Company or its Representatives. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Company may waive, and may choose not to enforce, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, directly or indirectly through any of its Representatives, prior to obtaining the Company Stockholder Approval, from taking any of the actions described in clauses (iii) and (iv) above in response to any bona fide written Company Takeover Proposal if and only to the extent that (1) the Company Board determines concludes in good faith, after consultation with its outside financial advisors and advisors, that such Company Takeover Proposal constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal, (2) the Company Board concludes in good faith, after consultation with its outside legal counsel, that the failure to do so take such action with respect to such Company Takeover Proposal would be inconsistent with the exercise of its fiduciary duties to the stockholders of the Company under applicable Law.Laws, (3) such Company Takeover Proposal was not solicited in violation of this
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Aon Corp), Agreement and Plan of Merger (Hewitt Associates Inc)
No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Section 6.02, the Company shall and shall cause each of its Subsidiaries to, and its and their respective directors, officers, and employees to, and shall use its reasonable best efforts to cause its other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during the period from From the date of this Agreement through until the earlier of the Closing and Effective Time or the date of termination of this Agreement pursuant to Article VIIIAgreement, the Company shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or permit any Representatives of the Company or any Company Subsidiary to, directly or indirectly, (Ai) solicit, initiate or knowingly encouragefacilitate, initiate, induce or take any action to facilitate encourage the submission of of, any inquiry Company Takeover Proposal (as hereinafter defined) or the making of any proposal or offer, in each case offer or inquiry that constitutes, or would could reasonably be expected to lead to, to a Company Takeover Proposal; (ii) enter into any letter of intent or agreement in principle or any Contract (other than a confidentiality agreement in accordance with this Section 5.02(a)) providing for, relating to or in connection with, any Company Takeover Proposal or any proposal, offer or inquiry that could reasonably be expected to lead to a Company Takeover Proposal; (Biii) engage in enter into, continue or otherwise participate in any discussions or negotiations regarding with any submission, proposal, announcement, offer, Third Party with respect to any Company Takeover Proposal or any proposal or offer or inquiry that could reasonably be expected to lead to a Company Takeover Proposal; or (iv) furnish to any Third Party any non-public information regarding the Company or any of the Company Subsidiaries, or afford access to the properties, books and records of the Company, in connection with or in response to any Company Takeover Proposal or any proposal or offer or inquiry by such Third Party that could reasonably be expected to lead to a Company Takeover Proposal; provided, however, that nothing contained in this Agreement shall prohibit the Company or the Company Board, directly or indirectly through any of its Representatives, prior to obtaining the Company Stockholder Approval, from taking any of the actions described in clause (iii) or (iv) above in response to any unsolicited bona fide written Company Takeover Proposal received by the Company after the date hereof if (1) the Company Board concludes in good faith, after consultation with its outside financial advisors, that such Company Takeover Proposal constitutes a Superior Company Proposal or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any non-public information in connection with a Takeover Proposal or any such submission, proposal, announcement, offer, or inquirySuperior Company Proposal, (C2) enter into any Company Acquisition Agreement, (D) terminate, waive, amend, release or modify any provision of any confidentiality agreement to which the Company or any Subsidiary of the Company is a party in connection with any Takeover Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counsel) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, deliver a request to each Person that has executed a confidentiality agreement with the Company during the eighteen (18) months prior to the date of this Agreement or has received non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return or destroy any non-public information previously furnished or made available to such Person or any of its Representatives on behalf of the Company or its Representatives. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Company may waive, and may choose not to enforce, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, if and only to the extent that the Company Board determines concludes in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to do so take such action with respect to such Company Takeover Proposal would be inconsistent with the exercise of its fiduciary duties to the stockholders of the Company under applicable LawLaws, (3) such Company Takeover Proposal was not solicited in violation of this Section 5.02, and (4) prior to furnishing any non-public information to, or entering into discussions or negotiations with, such Third Party (x) the Company receives from such Third Party an executed confidentiality agreement with provisions not less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement, and (y) the Company provides to Parent in accordance with Section 5.02(b) the information required under Section 5.02(b) to be delivered by the Company to Parent. The Company agrees that it and the Company Subsidiaries shall not enter into any Contract with any Person that prohibits the Company from providing information to Parent that is required to be provided to Parent under this Section 5.02.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (SXC Health Solutions Corp.), Agreement and Plan of Merger (Catalyst Health Solutions, Inc.)
No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Section 6.02, the Company shall and shall cause each of its Subsidiaries to, and its and their respective directors, officers, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during the period from the date of this Agreement through the earlier of the Closing and the termination of this Agreement pursuant to Article VIII, not, directly or indirectly, (A) solicit, knowingly encourage, initiate, initiate or take any action to facilitate the submission of any inquiry or the making of any proposal or offerproposal, in each case that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (B) engage in or otherwise participate in any discussions or negotiations regarding any submissionregarding, proposal, announcement, offer, or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any material non-public information in connection with for the purpose of encouraging or facilitating, a Takeover Proposal or any such submission, proposal, announcement, offer, or inquiry, (C) enter into any Company Acquisition Agreementletter of intent, (D) terminate, waive, amend, release agreement or modify any provision of any confidentiality agreement in principle with respect to which the Company or any Subsidiary of the Company is a party in connection with any Takeover Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counsel) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, deliver a request to each Person that has executed a confidentiality agreement with the Company during the eighteen (18) months prior to the date of this Agreement or has received non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return or destroy any non-public information previously furnished or made available to such Person or any of its Representatives on behalf of the Company or its Representatives. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Company may waive, and may choose not to enforce, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, if and only to the extent that the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American International Group Inc), Agreement and Plan of Merger (Validus Holdings LTD)
No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Section 6.025.02, the Company shall and shall cause each of its Subsidiaries toSubsidiaries, and its and their respective directors, officers, directors and employees to, and shall use its reasonable best efforts to cause its other Representatives (including by providing written direction to its financial advisor advisors informing it each of them of the obligations set forth in clauses (i) and (iiiii) of this Section 6.02(a5.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal, (ii) promptly take all steps necessary (to the extent reasonably possible) to terminate any waiver of any “standstill” or similar obligation of any Person under any Existing Confidentiality Agreement that may have been heretofore given by the Company to any Person to make a Takeover Proposal and (iiiii) during until the period from the date of this Agreement through the earlier of the Closing and Effective Time or, if earlier, the termination of this Agreement pursuant to in accordance with Article VIIIVII, not, directly or indirectly, (A) solicit, knowingly encourage, initiate, initiate or take any action to knowingly facilitate the submission of any inquiry or the making of any proposal or offerproposal, in each case case, that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (B) amend, waive or fail to enforce (to the extent permitted under applicable Law) any “standstill” or similar obligation of any Person under any Existing Confidentiality Agreement, (C) engage in or otherwise participate in any discussions (except to notify a Person of the existence of the provisions of this Section 5.02) or negotiations regarding any submissionregarding, proposal, announcement, offer, or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any material non-public information in connection with for the purpose of encouraging or facilitating, a Takeover Proposal or any such submission, proposal, announcement, offer, or inquiry, (CD) enter into any Company Acquisition Agreementletter of intent, (D) terminate, waive, amend, release agreement or modify any provision of any confidentiality agreement in principle with respect to which the Company or any Subsidiary of the Company is a party in connection with any Takeover Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counsel) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, deliver a request to each Person that has executed a confidentiality agreement with the Company during the eighteen (18) months prior to the date of this Agreement or has received non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal (an “Existing Confidentiality Agreement”) to promptly return or destroy any non-public information previously furnished or made available to such Person or any of its Representatives on behalf of the Company or its Representatives. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Company may waive, and may choose not to enforce, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, if and only to the extent that the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (OneBeacon Insurance Group, Ltd.)
No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Section 6.025.02, the Company shall and shall cause each of its Subsidiaries to, and its and their respective directors, officers, employees and employees directors to, and shall use its reasonable best efforts to cause its other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during the period from the date of this Agreement through hereof until the earlier of Effective Time (or, if earlier, the Closing and the valid termination of this Agreement pursuant to in accordance with Article VIIIVII), not, directly or indirectly, (A) solicit, initiate or knowingly encourage, initiate, encourage or take any action to knowingly facilitate the submission of any inquiry or the making of any proposal or offer, in each case that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (B) engage in or otherwise participate in any discussions or negotiations regarding any submissionregarding, proposal, announcement, offer, or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any non-public information in connection with or access to its properties or assets for the purpose of encouraging or facilitating, a Takeover Proposal or any such submission, proposal, announcement, offer, or inquiry, (C) enter into any Company Acquisition Agreement. The Company will promptly request that each Person (other than Parent, (DMerger Sub and their Representatives) that has, on or prior to the date hereof, executed a confidentiality agreement in connection with its consideration of a Takeover Proposal to promptly return or destroy all confidential information furnished to such Person by or on behalf of the Company or any of its Subsidiaries or Representatives on or prior to the date hereof and shall terminate access to all data rooms furnished in connection therewith. The Company agrees that neither it nor any of its Subsidiaries shall terminate, waive, amend, release or modify any provision of any confidentiality existing standstill or similar agreement to which the Company it or any Subsidiary one of the Company its Subsidiaries is a party in connection with any Takeover Proposal or any submissionparty, proposalexcept that prior to obtaining the Required Shareholder Approvals, offerif after consultation with, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless and taking into account the advice of, outside legal counsel, the Company Board or the Special Committee determines in good faith (after consultation with its outside counsel) that the failure to do so take such action would be inconsistent with the directors’ fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, deliver a request to each Person that has executed a confidentiality agreement with the Company during the eighteen (18) months prior to the date of this Agreement or has received non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return or destroy any non-public information previously furnished or made available to such Person or any of its Representatives on behalf of the Company or its Representatives. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Company may waivewaive any such standstill provision solely to the extent necessary to permit a Person to make, and may choose not to enforceon a confidential basis, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, if and only a Takeover Proposal, or to the extent that the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable Lawpermit any discussions or negotiations permitted by Section 5.02(b).
Appears in 1 contract
No Solicitation by the Company; Change in Recommendation. (a) Except as expressly permitted by this Section 6.025.02, the Company shall and shall cause each of its Subsidiaries to, and its shall instruct and their respective directors, officers, and employees to, and shall use its reasonable best efforts to cause its other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during until the period from the date of this Agreement through the earlier of the Closing and Effective Time or, if earlier, the termination of this Agreement pursuant to in accordance with Article VIIIVII, not, directly or indirectly, (A) solicit, initiate or knowingly encourage, initiate, facilitate or take any action to facilitate encourage (including by way of furnishing non-public information) the submission of any inquiry inquiries regarding, or the making of any proposal proposal, request or offer, in each case offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (B) engage in in, continue or otherwise participate in any discussions or negotiations regarding any submissionregarding, proposal, announcement, offer, or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any non-public information or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person, in connection with with, or for the purpose of, encouraging or facilitating a Takeover Proposal or any such submission, proposal, announcement, offer, or inquiry, (C) enter into any Company Acquisition Agreementletter of intent, (D) terminate, waive, amend, release agreement or modify any provision of any confidentiality agreement in principle with respect to which the Company or any Subsidiary of the Company is a party in connection with any Takeover Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counsel) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal; provided, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, deliver a request to each Person that has executed a confidentiality agreement with the Company during the eighteen (18) months prior to the date of this Agreement or has received non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return or destroy any non-public information previously furnished or made available to such Person or any of its Representatives on behalf of the Company or its Representatives. Notwithstanding notwithstanding the foregoing or anything else in this Agreement to the contrary, the Company may waive, and may choose not to enforce, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, if and only to the extent that the Company Company’s Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable Lawof Directors.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Tower Group International, Ltd.)
No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Section 6.02During the Interim Period, the Company shall and not, shall cause each of its Subsidiaries to, and its and their respective directors, officers, and employees to, not to and shall use its reasonable best efforts to cause its other Affiliates and the respective Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) Company and (ii) of this Section 6.02(a)), as applicable, its Affiliates not to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during the period from the date of this Agreement through the earlier of the Closing and the termination of this Agreement pursuant to Article VIII, not, directly or indirectly, (Ai) solicit, knowingly encourage, initiate, solicit or take knowingly encourage or knowingly facilitate any action to facilitate the submission of any inquiry inquiries or requests for information with respect to, or the making of of, any inquiry regarding, or any proposal or offer, in each case offer that constitutes, or would could reasonably be expected to result in or lead to, a Takeover any Company Acquisition Proposal, (Bii) engage in in, continue or otherwise participate in any negotiations or discussions concerning, or negotiations regarding provide access to its properties, books and records or any submissionconfidential information or data to, any Person relating to any proposal, announcement, offer, inquiry or inquiry request for information that constitutes constitutes, or would could reasonably be expected to result in or lead to a Takeover Proposal or furnish to any other Person any non-public information in connection with a Takeover Proposal or any such submissionto, proposal, announcement, offer, or inquiry, (C) enter into any Company Acquisition AgreementProposal, (Diii) terminateapprove, waiveendorse or recommend, amendor propose publicly to approve, release endorse or modify recommend, any provision Company Acquisition Proposal, (iv) execute or enter into, any letter of any intent, memorandum of understanding, agreement in principle, confidentiality agreement merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement for or relating to which the any Company or any Subsidiary of the Company is a party in connection with any Takeover Acquisition Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counselv) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal, or (F) publicly propose resolve or agree to do any of the foregoing. Promptly The Company agrees that immediately following the execution of this Agreement it shall, and shall cause each of its Subsidiaries and shall use its reasonable best efforts to cause its other Affiliates and the respective Representatives of the Company and its Affiliates to, cease any solicitations, discussions or negotiations with any Person (other than SPAC, Merger Sub and their respective Representatives) conducted heretofore in connection with a Company Acquisition Proposal or any inquiry or request for information that could reasonably be expected to lead to, or result in, a Company Acquisition Proposal. The Company also agrees that within three (3) Business Days of the execution of this Agreement, the Company shallshall request each Person (other than SPAC, to the extent it had not previously done so Merger Sub and their respective Representatives) that has prior to the date of this Agreement, deliver a request to each Person that has hereof executed a confidentiality agreement in connection with its consideration of acquiring the Company during (and with whom the eighteen Company has had contact in the twelve (1812) months prior to the date of this Agreement regarding the acquisition of the Company) to return or has received non-public destroy all confidential information from furnished to such Person by or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return or destroy any non-public information previously furnished or made available to such Person or any of its Representatives Subsidiaries prior to the date hereof and terminate access to any physical or electronic data room maintained by or on behalf of the Company or any of its RepresentativesSubsidiaries. Notwithstanding The Company shall promptly (and in any event within two (2) Business Days) notify, in writing, SPAC of the foregoing receipt of any inquiry, proposal, offer or anything else request for information received after the date hereof that constitutes, or could reasonably be expected to result in or lead to, any Company Acquisition Proposal, which notice shall include a summary of the material terms of, and the identity of the Person or group of Persons making, such inquiry, proposal, offer or request for information and an unredacted copy of any Company Acquisition Proposal or inquiry, proposal or offer made in writing or, if not in writing, a written description of the material terms and conditions of such inquiry, proposal or offer (and shall include any other documents evidencing or specifying the terms of such proposal, offer, inquiry or request). Without limiting the foregoing, it is understood that any violation of the restrictions contained in this Agreement Section 8.05(a) by any of the Company’s Subsidiaries, or any of the Company’s or its Subsidiaries’ respective Representatives acting on the Company’s or one of its Subsidiaries’ behalf, shall be deemed to be a breach of this Section 8.05(a) by the contrary, the Company may waive, and may choose not to enforce, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, if and only to the extent that the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable LawCompany.
Appears in 1 contract
Samples: Business Combination Agreement (NavSight Holdings, Inc.)
No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Section 6.02The Company shall, the Company shall and shall cause each of its Subsidiaries to, and its shall direct and their respective directors, officers, and employees to, and shall use its reasonable best efforts to cause its other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during until the period from the date of this Agreement through the earlier of the Closing and Final Effective Time or, if earlier, the termination of this Agreement pursuant to in accordance with Article VIIIVII, not, directly or indirectly, (A) solicit, initiate or knowingly encourage, initiate, facilitate or take any action to facilitate encourage (including by way of furnishing non-public information) the submission of any inquiry inquiries or requests for non-public information regarding, or the making or consummation of any proposal or offer, in each case offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (B) engage in in, continue or otherwise participate in any discussions or negotiations regarding any submissionregarding, proposal, announcement, offer, or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any non-public information in connection with with, or for the purpose of, encouraging or facilitating a Takeover Proposal or any such submission, proposal, announcement, offer, or inquiryProposal, (C) enter into or publicly propose to enter into any Company Acquisition Agreementletter of intent, agreement or agreement in principle with respect to a Takeover Proposal or (D) terminate, waive, amend, release modify or modify any provision fail to enforce the terms or conditions of any confidentiality agreement, standstill agreement to which the Company or any Subsidiary of the Company is a party in connection with any Takeover Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counsel) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses similar obligation of any Person (other than the Company’s Representatives(1) in connection Parent and its Affiliates and (2) any other Person that is subject to a standstill agreement with any Takeover Proposal, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to as of the date of this Agreement, deliver a request to each Person that has executed a confidentiality agreement with the Company during the eighteen (18) months prior but only to the date of this Agreement or has received extent necessary to permit such Person to make a non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return or destroy any the Company if such Person requests permission from the Company (on a non-public information previously furnished or made available basis) to make such Person or any of its Representatives on behalf of the Company or its Representatives. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Company may waive, and may choose not to enforce, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, or any of its Subsidiaries). The Company shall be responsible for any action taken by it or its Subsidiaries’ Representatives that would be a breach of this Section 5.02(a) if and only to such action was taken by the extent that Company. Upon becoming aware of any action by any Representative of the Company Board determines in good faithor any of its Subsidiaries that would constitute a breach of this Section 5.02(a) if taken by the Company, after consultation with the Company shall use its financial advisors and outside legal counselreasonable best efforts to stop any such Representative from continuing to take such action, that the failure to do so would be inconsistent with its fiduciary duties under applicable Lawdirectly or indirectly.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Flagstone Reinsurance Holdings, S.A.)
No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Section 6.02, from and after the date hereof, the Company shall shall, and shall cause each of its Subsidiaries toSubsidiaries, and its and their respective directors, officers, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during the period from the date of this Agreement through the earlier of the Closing and the termination of this Agreement pursuant to Article VIIIAgreement, not, directly or indirectly, (A) solicit, knowingly encourage, initiate, initiate or take any action to knowingly facilitate the submission of any inquiry or the making of any proposal or offerproposal, in each case case, that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (B) engage in or otherwise participate in any discussions or negotiations regarding any submission, proposal, announcement, offerregarding, or inquiry furnish to any other Person any material non-public information for the purpose of facilitating, a Takeover Proposal or (C) approve or recommend, make any public statement approving or recommending, or enter into any letter of intent, agreement or agreement in principle that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any non-public information in connection with a Takeover Proposal or any such submission, proposal, announcement, offer, or inquiry, (C) enter into any Company Acquisition Agreement, (D) terminate, waive, amend, release or modify any provision of any confidentiality agreement to which the Company or any Subsidiary of the Company is a party in connection with any Takeover Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counsel) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, deliver a request to each Person that has previously executed a confidentiality agreement with the Company during the eighteen twelve (1812) months prior to the date of this Agreement or has received non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return to the Company or destroy any all non-public information previously furnished or made available to such Person or any of its Representatives by or on behalf of the Company or any of its Subsidiaries in accordance with the terms of the applicable confidentiality agreement and immediately terminate all physical and electronic dataroom access previously granted to any such Persons or their Representatives. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 6.02 and shall be liable for any action taken by any Representative of the Company that, if taken by the Company, would constitute a breach of this Section 6.02. Notwithstanding the foregoing or anything else in this Agreement to the contraryforegoing, the Company may waive, and may choose not shall be permitted to enforce, any provision of waive any standstill or confidentiality agreement with provision to allow any Person that would prohibit such Person from communicating confidentially to make a Takeover Proposal to the Company Board, Board on a non-public basis if and only to the extent that the Company Board determines has determined in good faith, after consultation with its financial advisors and the Company’s outside legal counsel, that the failure to do so take such action would reasonably be expected to be inconsistent with its the directors’ fiduciary duties under applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Argo Group International Holdings, Ltd.)
No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Section 6.02, the Company shall and shall cause each of its Subsidiaries to, and its and their respective directors, officers, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during the period from the date of this Agreement through the earlier of the Closing and the termination of this Agreement pursuant to Article VIII, not, directly or indirectly, (A) solicit, knowingly encourage, initiate, initiate or take any action to facilitate the submission of any inquiry or the making of any proposal or offerproposal, in each case that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (B) engage in or otherwise participate in any discussions or negotiations regarding any submissionregarding, proposal, announcement, offer, or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any material non-public information in connection with for the purpose of encouraging or facilitating, a Takeover Proposal or any such submission, proposal, announcement, offer, or inquiry, (C) enter into any Company Acquisition Agreementletter of intent, (D) terminate, waive, amend, release agreement or modify any provision of any confidentiality agreement in principle with respect to which the Company or any Subsidiary of the Company is a party in connection with any Takeover Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counsel) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, deliver a request to each Person that (1) has executed a confidentiality agreement with the Company during the eighteen (18) months prior to the date of this Agreement or has received non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal or (2) has executed a confidentiality agreement with the Company more than eighteen (18) months prior to the date of this Agreement and has received non-public information from the Company during the six (6) months prior to the date of this Agreement in connection with considering or making a Takeover Proposal, in each case, to promptly return or destroy any non-public information previously furnished or made available to such Person or any of its Representatives on behalf of the Company or its Representatives. Notwithstanding the foregoing or anything else in this Agreement to the contraryforegoing, the Company may waive, and may choose not shall be permitted to enforce, any provision of waive any standstill or confidentiality agreement with provision to allow any Person that would prohibit such Person from communicating confidentially to make a Takeover Proposal to the Company Board, Board on a non-public basis if and only to the extent that the Company Board determines has determined in good faith, after consultation with its financial advisors and the Company’s outside legal counsel, that the failure to do so take such action would be inconsistent with its the directors’ fiduciary duties under applicable Law.
Appears in 1 contract
No Solicitation by the Company; Change in Recommendation. (a) Except as permitted by this Subject to Section 6.025.02(b), during the Pre-Closing Period, the Company will cease and cause to be terminated any discussions or negotiations with any Person and its Representatives relating to an Acquisition Transaction or an Acquisition Proposal. Subject to Section 5.02(b), during the Pre-Closing Period, the Company shall not, and shall cause each of its Subsidiaries tocontrolled Affiliates, and its and their respective directors, directors and officers, and employees toto not, and shall not authorize and shall direct its and its controlled Affiliates’ other employees, consultants and Representatives to not (and shall otherwise use its reasonable best efforts to cause its not permit such employees, consultants and other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(ato)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during the period from the date of this Agreement through the earlier of the Closing and the termination of this Agreement pursuant to Article VIII, not, directly or indirectly, (Ai) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, initiatefacilitate or assist, any offer inquiry, indication of interest or proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal; (ii) furnish to any Person or Group (other than Parent or any of its Representatives in their capacity as such) any non-public information relating to the Company or any of its Subsidiaries or to afford any Person or Group (other than Parent or any of its Representatives in their capacity as such) access to the business, properties, assets, books, records or other non-public information relating to the Company or any of its Subsidiaries, or take to any action personnel, of the Company or any of its Subsidiaries, in any such case in connection with an Acquisition Proposal or with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate the submission of any inquiry or assist, an Acquisition Proposal or the making of any proposal or offer, inquiry, indication of interest or proposal that constitutes, or would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in each case discussions or negotiations with any Person or Group with respect to an Acquisition Proposal or with respect to any inquiries from third Persons relating to the making of an Acquisition Proposal (other than informing such Persons of the provisions contained in this Section 5.02(a)); (iv) approve, endorse or recommend any offer, inquiry, indication of interest or proposal that constitutes, or would reasonably be expected to lead to, a Takeover an Acquisition Proposal, ; (B) engage in or otherwise participate in any discussions or negotiations regarding any submission, proposal, announcement, offer, or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any non-public information in connection with a Takeover Proposal or any such submission, proposal, announcement, offer, or inquiry, (Cv) enter into any Company letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract (whether written or oral, binding or non-binding) relating to an Acquisition Agreement, (D) terminate, waive, amend, release or modify any provision of any confidentiality agreement to which the Company or any Subsidiary of the Company is a party in connection with any Takeover Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counsel) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses of any Person (other than the Company’s Representatives) in connection with any Takeover Proposal, Transaction; or (Fiv) publicly propose authorize or agree commit to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, deliver a request to each Person that has executed a confidentiality agreement with the Company during the eighteen (18) months prior to the date of this Agreement or has received non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return or destroy any non-public information previously furnished or made available to such Person or any of its Representatives on behalf of the Company or its Representatives. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Company may waive, and may choose not to enforce, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, if and only to the extent that the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable Law.
Appears in 1 contract
No Solicitation by the Company; Change in Recommendation. (ah) Except as permitted by this Section 6.02The Company shall, the Company shall and shall cause each of its Subsidiaries to, and its shall direct and their respective directors, officers, and employees to, and shall use its reasonable best efforts to cause its other Representatives (including by providing written direction to its financial advisor informing it of the obligations set forth in clauses (i) and (ii) of this Section 6.02(a)), as applicable, to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to a Takeover Proposal and (ii) during until the period from the date of this Agreement through the earlier of the Closing and Final Effective Time or, if earlier, the termination of this Agreement pursuant to in accordance with Article VIIIVII, not, directly or indirectly, (A) solicit, initiate or knowingly encourage, initiate, facilitate or take any action to facilitate encourage (including by way of furnishing non-public information) the submission of any inquiry inquiries or requests for non-public information regarding, or the making or consummation of any proposal or offer, in each case offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (B) engage in in, continue or otherwise participate in any discussions or negotiations regarding any submissionregarding, proposal, announcement, offer, or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal or furnish to any other Person any non-public information in connection with with, or for the purpose of, encouraging or facilitating a Takeover Proposal or any such submission, proposal, announcement, offer, or inquiryProposal, (C) enter into or publicly propose to enter into any Company Acquisition Agreementletter of intent, agreement or agreement in principle with respect to a Takeover Proposal or (D) terminate, waive, amend, release modify or modify any provision fail to enforce the terms or conditions of any confidentiality agreement, standstill agreement to which the Company or any Subsidiary of the Company is a party in connection with any Takeover Proposal or any submission, proposal, offer, or inquiry that would reasonably be expected to lead to any Takeover Proposal (unless the Company Board determines in good faith (after consultation with its outside counsel) that failure to do so would be inconsistent with the fiduciary duties of directors under applicable Law), (E) reimburse or agree to reimburse the expenses similar obligation of any Person (other than the Company’s Representatives(1) in connection Parent and its Affiliates and (2) any other Person that is subject to a standstill agreement with any Takeover Proposal, or (F) publicly propose or agree to do any of the foregoing. Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to as of the date of this Agreement, deliver a request to each Person that has executed a confidentiality agreement with the Company during the eighteen (18) months prior but only to the date of this Agreement or has received extent necessary to permit such Person to make a non-public information from or on behalf of the Company during such period, in either case, in connection with considering or making a Takeover Proposal to promptly return or destroy any the Company if such Person requests permission from the Company (on a non-public information previously furnished or made available basis) to make such Person or any of its Representatives on behalf of the Company or its Representatives. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the Company may waive, and may choose not to enforce, any provision of any standstill or confidentiality agreement with any Person that would prohibit such Person from communicating confidentially a Takeover Proposal to the Company Board, or any of its Subsidiaries). The Company shall be responsible for any action taken by it or its Subsidiaries’ Representatives that would be a breach of this Section 5.02(a) if and only to such action was taken by the extent that Company. Upon becoming aware of any action by any Representative of the Company Board determines in good faithor any of its Subsidiaries that would constitute a breach of this Section 5.02(a) if taken by the Company, after consultation with the Company shall use its financial advisors and outside legal counselreasonable best efforts to stop any such Representative from continuing to take such action, that the failure to do so would be inconsistent with its fiduciary duties under applicable Lawdirectly or indirectly.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Validus Holdings LTD)
