No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Schwab Charles Corp), Agreement and Plan of Merger (Td Ameritrade Holding Corp), Voting and Support Agreement
No Solicitation by the Company. (a) From After the date of this Agreement until the earlier of hereof and prior to the Effective Time and the or earlier termination of this Agreement in accordance with Agreement, neither the Company nor any of its termsSubsidiaries nor any of the officers, except as otherwise set forth in this Section 6.03directors or employees of the Company or its Subsidiaries shall, and the Company shall not, and shall use reasonable best efforts to cause its Subsidiaries, and its and its Subsidiaries’ officersattorneys, directors, employeesaccountants, investment bankers, attorneysfinancial advisors, accountants, consultants agents and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), ) not to, directly or indirectly, : (i) solicit, initiate initiate, encourage or take induce any action to knowingly facilitate inquiry with respect to, or knowingly encourage the making, submission of any or announcement of, a Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations withregarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or afford access any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the business, properties, assets, books or records of Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiariesor their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Inamed Corp), Agreement and Plan of Merger (Allergan Inc), Agreement and Plan of Merger (Allergan Inc)
No Solicitation by the Company. (a) From Except as expressly permitted by this Section 6.5, from and after the date of this Agreement until the earlier of the Effective Time and (or, if earlier, the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Termination Date), the Company and its Subsidiaries shall not, and the Company shall cause its Subsidiaries, and its and its Subsidiaries’ officers, respective directors, employeesofficers and senior management employees not to, investment bankers, attorneys, accountants, consultants and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), Representatives not to, directly or indirectly, indirectly (i) solicit, initiate or take solicit any action to knowingly facilitate inquiry, proposal or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission of or announcement of, any Company Acquisition Alternative Proposal, (ii) enter into or participate in continue any discussions or negotiations withwith respect to the Company or its Subsidiaries to any Person in connection with a Company Alternative Proposal, furnish (iii) take or propose to take any information relating of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or afford access any other similar agreement providing for any Company Alternative Proposal (a “Company Alternative Acquisition Agreement”). Following the execution of this Agreement, the Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all discussions and negotiations, if any, that have taken place prior to the businessdate of this Agreement with any Persons with respect to any Company Alternative Proposal or the possibility thereof, properties(2) shall promptly request each Person, assetsif any, books that has executed a confidentiality agreement within the twelve (12) months prior to the date of this Agreement in connection with its consideration of any Company Alternative Proposal to return or records destroy all confidential information heretofore furnished to such Person by or on behalf of the Company it or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y3) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent shall immediately terminate all physical and electronic data room access for such Person and their representatives to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” diligence or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of information regarding the Company or any of its Subsidiaries.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Diamond Offshore Drilling, Inc.), Agreement and Plan of Merger (Noble Corp PLC), Agreement and Plan of Merger (Diamond Offshore Drilling, Inc.)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time The Company shall immediately cease, and shall cause its subsidiaries and the termination Company's and its subsidiaries' respective directors, officers, employees, investment bankers, attorneys, accountants and other representatives to cease, any discussions or negotiations with any Person that may be ongoing with respect to a Takeover Proposal (as hereinafter defined) and use its reasonable best efforts to obtain the return from all such Persons or cause the destruction of this Agreement all copies of confidential information provided to such parties by the Company or its representatives that are still in accordance with its terms, except as otherwise set forth in this Section 6.03, the possession of such Persons. The Company shall not, and shall cause its Subsidiaries, subsidiaries and the Company's and its and its Subsidiaries’ subsidiaries' respective directors, officers, directors, employees, investment bankers, attorneys, accountants, consultants accountants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, indirectly (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission initiation of (including by way of furnishing information that has not been previously publicly disseminated) any Company Acquisition Proposalinquiries or proposals that constitute, or may reasonably be expected to lead to, any Takeover Proposal or (ii) enter into or participate in any discussions with any third party regarding, or negotiations withfurnish to any third party any non-public information with respect to, or assist or facilitate, any Takeover Proposal; provided, however, that if the Board of Directors of the Company receives an unsolicited, bona fide written Takeover Proposal that was made in circumstances not involving a breach of this Agreement and that in the opinion of the Board of Directors of the Company could lead to a Superior Proposal, then the Company may, in response to such Takeover Proposal and after providing Purchaser written notice of its intention to take such actions, (A) furnish any information relating with respect to the Company or any of its Subsidiaries or afford access to the businessPerson making such Takeover Proposal, properties, assets, books or records of but only after such Person enters into a customary confidentiality agreement with the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that (which confidentiality agreement must be no less favorable to the Company knows(i.e., or should reasonably be expected no less restrictive with respect to knowthe conduct of such Person) than the confidentiality agreement entered into with Purchaser), is seeking provided that (1) such confidentiality agreement may not include any provision calling for an exclusive right to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, negotiate with the Company Board Recommendation and (it being understood that any failure 2) the Company advises Purchaser of all such non-public information delivered to publiclysuch Person concurrently with its delivery to such Person and concurrently with its delivery to such Person the Company delivers to Purchaser all such information not previously provided to Purchaser, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation participate in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws discussions and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition negotiations with such Person regarding such Takeover Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.
Appears in 3 contracts
Samples: Agreement (Odd Job Stores Inc), Agreement (Odd Job Stores Inc), Agreement (Odd Job Stores Inc)
No Solicitation by the Company. (a) From Except as expressly permitted by this Section 6.3, the date Company shall and shall cause each of its Affiliates and its and their respective officers and directors and shall use reasonable best efforts to cause its and their other employees, agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively, with its directors and officers “Representatives”): (i) to immediately cease and cause to be terminated any solicitation, encouragement, discussions or negotiations with any persons (other than Parent) that may be ongoing with respect to a Company Takeover Proposal and (ii) not to, directly or indirectly, (A) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any information in connection with or for the purpose of soliciting, initiating, knowingly encouraging or knowingly facilitating, a Company Takeover Proposal (other than (x) solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 6.3 and to limit its communication exclusively to such referral or (y) upon receipt of a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a breach of this Agreement until Section 6.3, solely to the earlier extent necessary ascertain facts or clarify terms with respect to a Company Takeover Proposal for the Company Board of Directors to be able to have sufficient information to make the Effective Time and the termination determination described in Section 6.3(c)), or (C) approve, adopt, recommend or enter into, or propose to approve, adopt, recommend or enter into, any letter of this Agreement intent or similar document, agreement, commitment, or agreement in accordance principle (whether written or oral, binding or nonbinding) with its terms, except as otherwise set forth in this Section 6.03, the respect to a Company Takeover Proposal. The Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), Affiliates not to, directly release any third party from, or indirectlywaive, (i) solicitamend or modify any provision of, initiate or take grant permission under, or fail to enforce, any action confidentiality obligations with respect to knowingly facilitate a Company Takeover Proposal or knowingly encourage the submission of similar matter or any Company Acquisition Proposal, (ii) enter into or participate standstill provision in any discussions or negotiations with, furnish any information relating agreement to which the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, affiliates is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendationparty, in each case, within ten (10) Business Days unless the Company Board of Directors determines in good faith, after a Company Acquisition Proposal is made public or any request by Parent consultation with its independent financial advisor and outside legal counsel, that the failure to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware would violate its fiduciary duties under applicable Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (WHITEWAVE FOODS Co)
No Solicitation by the Company. (a) Subject to Section 5.02(h): From and after the date of this Agreement until the earlier of the Effective Time and or the termination of date, if any, on which this Agreement in accordance with its termsis terminated pursuant to Section 8.01, and except as otherwise set forth provided for in this Section 6.03Agreement, the Company shall not, and shall cause its Subsidiaries, Affiliates not to and shall not authorize or permit its and its Subsidiaries’ their respective directors, officers, directors, employees, investment bankers, financial advisors, attorneys, accountantsaccountants or other advisors, consultants and other agents, advisors and agents or representatives (including, in the case of the Company, the Company Special Committee) (collectively, collectively “Representatives”), not ) to, directly or indirectly, : (i) solicit, initiate or take any action to initiate, knowingly facilitate or knowingly encourage the submission or making of any Company Acquisition Competing Proposal, (ii) enter into or participate in any discussions or negotiations withregarding, or knowingly furnish to any person any material nonpublic information relating in furtherance of (excluding, for the avoidance of doubt, information furnished to the Company a current or prospective commercial counterparty (including any of its Subsidiaries customer or afford access to the business, properties, assets, books or records supplier) of the Company or any of its Subsidiaries tofor the sole purpose of furthering an existing or prospective commercial arrangement with such person and, otherwise cooperate in any way withevent, or knowingly assist, participate in, facilitate or knowingly encourage not in contemplation of any effort byCompany Competing Proposal), any Third Party that the Company knows, Competing Proposal or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in enter into any manner adverse to Parent, the agreement regarding a Company Board Recommendation (it being understood that any failure to publiclyCompeting Proposal. The Company shall, and without qualification (x) recommend against shall cause its Affiliates and its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement person conducted heretofore with respect to any class Company Competing Proposal and promptly request the prompt return or destruction of equity securities all confidential information previously furnished, and the Company shall take all reasonably necessary actions to secure its rights and ensure the performance of any such person’s obligations under any applicable confidentiality agreement to return or destroy such information. The Company shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between the Company and any person (other than Parent), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such person to submit a Company Competing Proposal. The Company shall ensure that its Representatives are aware of the Company provisions of this Section 5.02, and any violation of the restrictions contained in this Section 5.02 by its Board of Directors (including any committee thereof) or any its Representatives shall be deemed to be a breach of its Subsidiariesthis Section 5.02 by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dollar Thrifty Automotive Group Inc), Agreement and Plan of Merger (Hertz Global Holdings Inc)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the The Company shall not, and shall cause its Subsidiaries, agrees that it and its Subsidiaries (i) will not (and its Subsidiaries’ it will not permit their officers, directors, employees, agents or representatives, including any investment bankersbanker, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly attorney or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company accountant retained by it or any of its Subsidiaries to) solicit, otherwise cooperate initiate or encourage (including by way of furnishing material non-public information) any inquiry, proposal or offer (including any proposal or offer to its stockholders) with respect to a third party tender offer, merger, consolidation, business combination or similar transaction involving any assets or class of capital stock of the Company, or any acquisition of 10% or more of the capital stock (other than upon exercise of the Company Options that are outstanding as of the date hereof) or 10% or more of the assets of the Company and its subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or any combination of the foregoing (any such proposal, offer or transaction being hereinafter referred to as a "Company Acquisition Proposal") or participate or engage in any way with, discussions or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, negotiations concerning a Company Acquisition Proposal; and (ii) will immediately cease and cause to be terminated any existing negotiations with any third parties conducted heretofore with respect to any of the foregoing; provided that, (iii) subject to Section 6.3(b), nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) fail complying with Rule 14e-2 promulgated under the Exchange Act with regard to makea Company Acquisition Proposal or (B) prior to the Cutoff Date (as defined below), providing information (pursuant to a confidentiality agreement containing terms identical in all material respects to the terms of the confidentiality agreement, dated June 21, 2001, entered into between the Company and Parent (the "Company/Parent Confidentiality Agreement")) to or withdraw or qualify, amend or modify engaging in any manner adverse to Parent, the negotiations or discussions with any person or entity who has made an unsolicited bona fide Company Board Recommendation (it being understood that any failure to publicly, and without qualification Acquisition Proposal if (x) recommend against any in the good faith judgment of the Company's Board of Directors, taking into account the likelihood of consummation and after consultation with its financial advisors, such Company Acquisition Proposal is reasonably likely to result in a transaction more favorable to the holders of the Company Shares from a financial point of view than the Merger and (y) reaffirm the Company Board Recommendationof Directors of the Company, after consultation with its outside legal counsel, determines in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent good faith that the failure to do so will would be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement inconsistent with respect to any class of equity securities of the Company or any of its Subsidiariesfiduciary obligations under applicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Devon Energy Corp/De), Agreement and Plan of Merger (Mitchell Energy & Development Corp)
No Solicitation by the Company. (a) From Subject to the other provisions of this Section 5.3, from and after the date of this Agreement hereof until the earlier of the Effective Time and or, if earlier, the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03pursuant to Article 7, the Company shall not, and shall cause its Subsidiaries, the Company Subsidiaries and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives the Company’s Representatives (including, in the case on behalf of the Company, Company or the Company Special CommitteeSubsidiaries) (collectively, “Representatives”), not to, directly or indirectly, (i) initiate, solicit, initiate or take any action to knowingly facilitate (including by providing any non-public information concerning the Company or knowingly encourage any Company Subsidiary to any Person or group for the submission purpose of facilitating any inquiries, proposals or offers relating to any Company Acquisition Proposal) or knowingly encourage any inquiry, (ii) enter into proposal or participate offer that constitutes or would reasonably be expected to lead to a Company Acquisition Proposal or engage in any discussions or negotiations withwith respect thereto, furnish any information relating to the Company (ii) approve or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withrecommend, or knowingly assist, participate in, facilitate publicly propose to approve or knowingly encourage any effort byrecommend, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) withhold, withdraw or rescind (A) fail to make, or withdraw change or qualify, amend or modify in any a manner adverse to ParentParent or Merger Sub), the Company Board Recommendation or publicly propose to withhold, withdraw or rescind (it being understood that any failure or change or qualify, in a manner adverse to publiclyParent or Merger Sub), and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of including the Company Board Recommendation for purposes hereof), (B) fail failure to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus Prospectus, (iv) enter into any merger agreement, letter of intent or (C) recommend, adopt or approve or publicly propose other similar agreement relating to recommend, adopt or approve any Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 5.3(b)) or (v) resolve or agree to do any of the foregoing (any action set forth in this the foregoing clause (iii) or clause (v) (to the extent related to the foregoing clause (iii)), a “Company Adverse Recommendation ChangeChange of Board Recommendation”). Subject to the other provisions of this Section 5.3, the Company shall, and shall cause the Company Subsidiaries and the Company’s Representatives (on behalf of the Company or the Company Subsidiaries) to, (ivA) take promptly (and, in any action event, within twenty-four (24) hours after the execution of this Agreement) cease any discussion or negotiation with any Persons (other than Parent and its affiliates and Representatives) conducted prior to make the date hereof by the Company, the Company Subsidiaries or any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable Company’s Representatives with respect to any Third Party or any Company Acquisition Proposal, or (vB) fail to enforcepromptly (and, or grant in any waiver or release underevent, within twenty-four (24) hours after the execution of this Agreement) terminate access by any standstill or similar agreement with respect Third Party to any class physical or electronic data room relating to any Company Acquisition Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Company Acquisition Proposal and (C) promptly (and in any event within seventy-two (72) hours after the execution of equity securities this Agreement) request the prompt return or destruction of any confidential information provided to any Third Party within the twelve (12) months immediately preceding the date of this Agreement in connection with any Company Acquisition Proposal or any inquiry, proposal or offer that constitutes or may reasonably be expected to lead to a Company Acquisition Proposal (it being understood that, for the avoidance of doubt, to the extent any contact by the Company or any Company Representative with any Person is in furtherance of its Subsidiariesthe Company’s obligations pursuant to this clause (C), such contact shall not violate the other restrictions of this Section 5.3). Notwithstanding anything to the contrary contained in this Section 5.3(a), the Company and the Company’s Representatives may (x) contact any Person that has made after the date of this Agreement a bona fide, unsolicited Company Acquisition Proposal solely in order to seek to clarify the terms and conditions thereof (which contact, for the avoidance of doubt, shall not include any negotiation of such terms or conditions), and (y) inform a Person that has made or is considering making a Company Acquisition Proposal of the provisions of this Section 5.3.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Taylor Morrison Home Corp), Agreement and Plan of Merger (William Lyon Homes)
No Solicitation by the Company. (ai) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its termsSection 7.1, except as otherwise set forth provided in this Section 6.03Section 5.2(a), the Company shall not, and shall cause not permit or authorize any of its SubsidiariesSubsidiaries or any director, and its and its Subsidiaries’ officersofficer, directors, employeesemployee, investment bankersbanker, attorneysfinancial advisor, accountantsattorney, consultants and accountant or other agentsadvisor, advisors and representatives (including, in the case of the Company, the Company Special Committee) agent or representative (collectively, “Representatives”), not ) of the Company or any of its Subsidiaries to, directly or indirectly, (iA) solicit, initiate initiate, endorse, knowingly encourage or take any action to knowingly facilitate any inquiry, proposal or knowingly encourage the submission of any offer that constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (iiB) enter into or participate in any discussions or negotiations with, or furnish any non-public information relating to the Company or data to, any Person (other than Parent or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company Affiliates or any of its Subsidiaries their respective Representatives) that is reasonably likely to be considering or seeking to make a Company Acquisition Proposal, in each case relating to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should as would reasonably be expected to know, is seeking to make, or has madelead to, a Company Acquisition Proposal, or (iiiC) (A) fail agree or propose to makedo any of the foregoing. The Company shall, or withdraw or qualify, amend or modify in any manner adverse to Parent, and shall cause each of its Subsidiaries and the Representatives of the Company Board Recommendation and its Subsidiaries to, (it being understood that 1) immediately cease and cause to be terminated all existing discussions and negotiations with any failure Person conducted heretofore with respect to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a or potential Company Acquisition Proposal is made public or and immediately terminate all physical and electronic data room access previously granted to any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof)such Person, (B2) fail request the prompt return or destruction of all confidential information previously furnished with respect to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any potential Company Acquisition Proposal, and (3) not terminate, waive, amend, release or (v) fail modify any provision of any confidentiality or standstill agreement to enforce, which it or grant any waiver of its Affiliates or release under, any standstill or similar agreement Representatives is a party with respect to any class Company Acquisition Proposal or potential Company Acquisition Proposal, and shall use commercially reasonable efforts to enforce the provisions of equity securities of any such agreement, which shall include seeking any injunctive relief available to enforce such agreement (provided, that the Company shall be permitted to grant waivers of, and not enforce, any standstill agreement, but solely to the extent that the Company Board has determined in good faith, after consultation with its outside counsel, that failure to take such action (I) would prohibit or any of delay the counterparty from making an unsolicited Company Acquisition Proposal to the Company Board in compliance with this Section 5.2(a) and (II) would be reasonably likely to be inconsistent with its Subsidiariesfiduciary duties under applicable Law).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Evoqua Water Technologies Corp.), Agreement and Plan of Merger (Xylem Inc.)
No Solicitation by the Company. (ai) From Except as expressly permitted by this Section 4.5(a), during the date of this Agreement until the earlier Pre-Closing Period, none of the Effective Time and the termination Company or any Representative of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectlyindirectly (A) whether publicly or otherwise, (i) initiate, solicit, initiate or take any action to knowingly facilitate seek, induce, cause or knowingly encourage the submission of or support any inquiries, proposals or offers that constitute or may reasonably be expected to lead to, a Company Acquisition ProposalProposal (as defined below), (iiB) enter into into, continue, maintain, conduct or otherwise engage or participate in in, or knowingly facilitate, any discussions or negotiations withregarding, or afford any Person other than Parent access to the Company’s or any of its Subsidiaries’ properties or assets, books and records, Contracts, personnel or otherwise furnish any nonpublic information relating to the Company or any of its Subsidiaries to any Person in connection with or afford access to for the businesspurpose of encouraging, propertiesinducing or facilitating any inquiries, assets, books proposals or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withoffers that constitute, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should may reasonably be expected to knowlead to, is seeking a Company Acquisition Proposal (other than, solely in response to makean unsolicited inquiry, solely to refer the inquiring person to this Section 4.5(a) and to limit its conversation or other communication exclusively to such referral), (C) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar type of Contract contemplating or otherwise providing for or relating to a Company Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to a Company Acquisition Proposal, or has madeenter into any Contract or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby, (D) take any action to make the provisions of any takeover statute or any similar provision contained in the organizational documents of the Company inapplicable to any transactions contemplated by a Company Acquisition Proposal, (iiiE) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforceamend, or grant any a waiver or release under, any standstill or similar agreement with respect to any class capital stock of equity securities the Company, or (F) publicly or otherwise, resolve, propose or agree to do any of the foregoing described in clauses (A) through (F); provided, however, that prior to the earlier of the approval of the Company Stockholder Proposals at the Company Stockholder Meeting or the termination of this Agreement in accordance with Article 7, the Company may take the following actions in response to an unsolicited bona fide written Company Acquisition Proposal received after the date hereof that the Board of Directors of the Company has determined, in good faith, after consultation with its outside counsel and financial advisors, constitutes, or would reasonably be expected to lead to, a Company Superior Offer: (1) furnish nonpublic information regarding the Company to the third party making the Company Acquisition Proposal (a “Company Qualified Bidder”), (2) engage in discussions or negotiations with the Company Qualified Bidder and its Representatives with respect to such Company Acquisition Proposal, and (3) amend, or grant a waiver or release under, any standstill or similar agreement with respect to any capital stock of the Company with any Company Qualified Bidder solely to the extent necessary to permit a third party to make, on a confidential basis to the Board of Directors of the Company, a Company Acquisition Proposal; provided that in any such case (w) the Company receives from the Company Qualified Bidder an executed confidentiality agreement the terms of which are not less restrictive to such Person and its Representatives than those contained in the Confidentiality Agreement, and containing additional provisions that expressly permit the Company to comply with the terms of this Section 4.5(a) (a “Company Acceptable Confidentiality Agreement”) (a copy of such Company Acceptable Confidentiality Agreement shall promptly, and in any event within twenty-four (24) hours, be provided to Parent for informational purposes only), (x) the Company contemporaneously supplies to Parent any such nonpublic information or access to any such nonpublic information to the extent it has not been previously provided or made available to Parent, (y) the Company has not breached this Section 4.5(a), and (z) the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel and financial advisors, that taking such actions would be required to comply with the fiduciary duties of the Board of Directors of the Company under applicable Laws. From and after the date of this Agreement, the Company shall use its reasonable best efforts to enforce, and cause its Subsidiaries and Representatives to enforce, any confidentiality provisions or provisions of similar effect to which it or any of its Subsidiaries is a party or of which it or any of its Subsidiaries is a beneficiary. Any violation of the restrictions contained in this Section 4.5(a) by any Representatives of the Company or any of its SubsidiariesSubsidiaries shall be deemed to be a breach of this Section 4.5(a) by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Emmaus Life Sciences, Inc.), Agreement and Plan of Merger and Reorganization (MYnd Analytics, Inc.)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its termsSection 7.1, except as otherwise set forth provided in Section 5.6(b) or Section 5.6(d), (i) the Company shall, and shall cause its Subsidiaries and its and their respective officers and directors to, immediately cease, and shall direct and use its reasonable best efforts to cause its and their respective other Representatives to immediately cease, and cause to be terminated all existing discussions, negotiations and communications with any Persons or entities with respect to any Company Acquisition Proposal (other than the transactions contemplated by this Section 6.03, Agreement); (ii) the Company shall not, and shall cause not authorize or permit any of its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not Representatives to, directly or indirectlyindirectly through another Person, (iA) initiate, seek, solicit, initiate or take any action to knowingly facilitate or facilitate, knowingly encourage the submission (including by way of furnishing any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withSubsidiaries), or knowingly assistinduce the making, participate in, facilitate submission or knowingly encourage announcement of any effort by, any Third Party proposal that the Company knowsconstitutes, or should would reasonably be expected to know, is seeking to make, or has madelead to, a Company Acquisition Proposal, (iiiB) (A) fail to makeengage in negotiations or discussions with, or withdraw provide any non-public information or qualifynon-public data to, amend or modify in any manner adverse afford access to Parentthe properties, books and records of the Company Board Recommendation to, any Person (it being understood that other than Parent or any failure of its Affiliates or Representatives) in connection with or in response to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent proposal reasonably expected to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail lead to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal or grant any waiver or release under any standstill, confidentiality or other agreement (except that if the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to grant any of waiver or release would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, the foregoing Company may waive any such standstill provision in this clause (iii), order to permit a “third party to make a Company Adverse Recommendation Change”Acquisition Proposal), (ivC) take enter into any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” binding or “business combination statute or regulation” non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar anti-takeover laws and regulations of the State of Delawareagreement, including Section 203 of the Delaware Lawcommitment, inapplicable arrangement or understanding contemplating or otherwise in connection with, or that is intended to any Third Party or would reasonably be expected to lead to, any Company Acquisition Proposal, or (vD) fail resolve to enforcedo any of the foregoing; (iii) the Company shall not provide and shall, or grant within twenty-four (24) hours of execution of this Agreement, terminate access of any waiver or release under, any standstill or similar agreement with respect third party to any class data room (virtual or actual) containing any of equity securities the Company’s information; and (iv) within twenty-four (24) hours of execution of this Agreement, the Company shall request the return or destruction of all confidential, non-public information and materials provided to third parties that have, entered into confidentiality agreements relating to a possible Company Acquisition Proposal with the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Middleby Corp), Agreement and Plan of Merger (Welbilt, Inc.)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Merger Effective Time and the termination of this Agreement in accordance with its termsAgreement, except as otherwise set forth in this Section 6.03Section 6.02, the Company shall not, and shall cause its Subsidiaries, Subsidiaries and its and its Subsidiaries’ officersdirectors and officers to not, directors, employees, investment bankers, attorneys, accountants, consultants and shall use its reasonable best efforts to cause its and its Subsidiaries’ other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not toRepresentatives to not, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing information) the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, knows is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), or (iv) take any action to make any “moratorium,” ”, “control share acquisition,” ”, “fair price,” ”, “supermajority,” ”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware LawDGCL, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bristol Myers Squibb Co), Agreement and Plan of Merger (Celgene Corp /De/)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except Except as otherwise set forth in permitted by this Section 6.03Agreement, the Company shall not, not and shall cause its Subsidiaries, Subsidiaries and its and their respective directors and officers not to, and shall use reasonable best efforts to cause its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), Representatives not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate initiate, induce, facilitate, or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating Proposal with respect to the Company or any inquiry, expression of its Subsidiaries interest, proposal or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party offer that the Company knows, or should could reasonably be expected to know, is seeking lead to make, or has made, a Company such an Acquisition Proposal, ; (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (ivii) take any action to make the provisions of any Takeover Statute (including approving any transaction under, or a third party becoming an “moratorium,interested stockholder” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delawareunder, including Section 203 of the Delaware Law, DGCL) inapplicable to any Third Party transaction contemplated by an Acquisition Proposal with respect to the Company; (iii) enter into, participate in, maintain or continue any communications, discussions or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal with respect to the Company, (iv) enter into any letter of intent or any other contract, agreement, memorandum of understanding, commitment or other arrangement contemplating or otherwise relating to any Acquisition Proposal with respect to the Company (whether binding or nonbinding); (v) terminate, amend, release, modify or fail to enforce any provision (including any standstill or similar provision) of, or grant any permission, waiver or request under, any confidentiality, standstill or similar agreement; or (vi) resolve, propose or agree to do any of the foregoing. Promptly upon the execution of this Agreement, the Company shall and shall cause the Company Subsidiaries to, and shall cause its and their respective directors and officers to, and shall use reasonable best efforts to cause its other Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal, or (v) fail any inquiry or proposal that could reasonably be expected to enforce, or grant any waiver or release under, any standstill or similar agreement lead to an Acquisition Proposal with respect to the Company, use reasonable best efforts to request the prompt return or destruction of all confidential information furnished with respect to discussions prior to the date hereof in respect of an Acquisition Proposal with respect to the Company to the extent that the Company is entitled to have such documents returned or destroyed, promptly terminate all physical and electronic data room access previously granted to any class such Person or its Representatives. Notwithstanding the foregoing provisions of equity securities this Section 6.1(a), prior to obtaining the Company Stockholder Approval, this Section 6.1(a) shall not prohibit the Company from furnishing information regarding the Company to, or entering into discussions and negotiations with, any Person if (A) the Company shall have received from such Person a bona fide written Acquisition Proposal that, after consultation with its financial advisor and outside legal counsel, the Company Board determines in good faith is, or would reasonably be expected to result in, a Superior Proposal (and such proposal has not been withdrawn); (B) such Acquisition Proposal was not solicited, initiated, induced, facilitated or knowingly encouraged in violation of this Section 6.1(a) (after giving effect to this sentence); (C) the Company Board determines in good faith, after having consulted with its outside legal counsel, that failure to take such action would reasonably be expected to constitute a breach of the duties of the Company Board under applicable law; (D) prior to furnishing any such information or entering into such negotiations or discussions the Company obtains from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions and use restrictions) at least as favorable to the Company as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement, and provides a copy of the same to Parent; and (E) concurrently with furnishing any of its Subsidiariesinformation to such Person, to the extent such information has not been previously furnished by the Company to Parent or made available to Parent, the Company concurrently furnishes such information to or makes such information available in an electronic data room to Parent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Nano Dimension Ltd.), Agreement and Plan of Merger (Desktop Metal, Inc.)
No Solicitation by the Company. (a) From Except as expressly permitted by this Section 5.4, the date Company shall and shall cause each of its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its other Representatives: (i) to immediately cease and cause to be terminated any solicitation, knowing encouragement, discussions or negotiations with any persons (other than Parent) that is ongoing with respect to a Company Takeover Proposal and (ii) not to, directly or indirectly, (A) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any information in connection with or for the purpose of soliciting, initiating, encouraging or facilitating, a Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Agreement until Section 5.4, and provided, that the earlier Company and its Representatives may make inquiries of a person making an unsolicited Company Takeover Proposal (and its Representatives) to ascertain facts regarding such Company Takeover Proposal for the sole purpose of the Effective Time Company Board of Directors informing itself about such Company Takeover Proposal and the termination person making it, but in each case limiting its communication exclusively to such referral and such ascertaining of this Agreement facts), or (C) approve, adopt, recommend or enter into, or propose to approve, adopt, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in accordance principle (whether written or oral, binding or nonbinding) with its terms, except as otherwise set forth in this Section 6.03, the respect to a Company Takeover Proposal. The Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), affiliates not to, directly release any third party from, or indirectlywaive, (i) solicitamend or modify any provision of, initiate or take grant permission under, or fail to enforce, any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate standstill provision in any discussions or negotiations with, furnish any information relating agreement to which the Company or any of its Subsidiaries or afford access to the businessaffiliates is a party; provided that, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class person that did not submit an indication of equity securities of interest or bid to acquire the Company or during the period between March 1, 2016 and the date of this Agreement, if the Company Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Laws, the Company may waive any such standstill provision applicable to any such persons solely to the extent necessary to permit a third party to make a confidential Company Takeover Proposal to the Company Board of its SubsidiariesDirectors.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Linear Technology Corp /Ca/), Agreement and Plan of Merger (Analog Devices Inc)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time The Company agrees that it and its Subsidiaries (i) will not (and the termination of this Agreement in accordance with Company will not permit its terms, except as otherwise set forth in this Section 6.03, the Company shall not, and shall cause or its Subsidiaries, and its and its Subsidiaries’ ' officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly agents or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delawarerepresentatives, including Section 203 of the Delaware Lawany investment banker, inapplicable to any Third Party attorney or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of accountant retained by the Company or any of its Subsidiaries, to) solicit, initiate or encourage (including by way of furnishing non-public information) any inquiry, proposal or offer (including any proposal or offer to its stockholders) with respect to a third party tender offer, merger, consolidation, business combination or similar transaction involving any assets or class of capital stock of the Company, or any acquisition of 10% or more of the capital stock of the Company (other than upon exercise of the Stock Options (as hereinafter defined) that are outstanding as of the date hereof) or a business or assets that constitute 10% or more of the net revenues, net operating income or assets of the Company and its Subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or any combination of the foregoing (any such proposal, offer or transaction being hereinafter referred to as a "Company Acquisition Proposal") or participate or engage in any discussions or negotiations concerning a Company Acquisition Proposal; and (ii) will immediately cease and cause to be terminated any existing discussions or negotiations with any third parties conducted heretofore with respect to any Company Acquisition Proposal; provided that, subject to Section 5.4(b), nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal, (B) making any disclosure to the holders of Company Shares if in the good faith judgment of the Company's Board of Directors failure to make such disclosure would be inconsistent with its fiduciary duties under applicable law or the rules of the New York Stock Exchange or (C) providing information (pursuant to a confidentiality agreement in reasonably customary form and which does not contain terms that prevent the Company from complying with its obligations under this Section 5.2) to or engaging in any negotiations or discussions with any person or group who has made an unsolicited bona fide Company Acquisition Proposal with respect to all the outstanding shares of capital stock of the Company or all or substantially all of the assets of the Company if, with respect to the actions set forth in clause (C), (x) in the good faith judgment of the Company's Board of Directors, taking into account the likelihood of consummation and after consultation with its financial advisors, such Company Acquisition Proposal is reasonably likely to result in a transaction more favorable to the holders of the Company Common Shares from a financial point of view than the Merger (a "Company Superior Proposal") and (y) the Board of Directors of the Company, after consultation with its outside legal counsel, determines in good faith that the failure to do so would be inconsistent with its fiduciary obligations under applicable law.
Appears in 2 contracts
Samples: Employment Agreement (Devon Energy Corp/De), Agreement and Plan of Merger (Ocean Energy Inc /Tx/)
No Solicitation by the Company. (a) From the date The Company agrees that neither it nor any of this Agreement until the earlier its Subsidiaries nor any of the Effective Time its and the termination of this Agreement in accordance with its termstheir respective directors, except as otherwise set forth in this Section 6.03officers or employees shall, and the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), Representatives not to, directly or indirectlyindirectly through another person, (i) solicit, knowingly initiate or take any action to knowingly facilitate encourage, or knowingly encourage facilitate, any Takeover Proposal or the submission of any Company Acquisition Proposalmaking or consummation thereof, (ii) enter into into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information in connection with, furnish or enter into any information relating agreement with respect to, any Takeover Proposal, (iii) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person (other than Parent) with respect to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”)Subsidiaries, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulationcombination” or other similar anti-takeover laws and regulations of the State of Delawarestatute or regulation (including any transaction under, including or a third party becoming an “interested stockholder” under, Section 203 of the Delaware LawDGCL), or any restrictive provision of any applicable anti-takeover provision in the Company’s certificate of incorporation or bylaws, inapplicable to any Third Party transactions contemplated by a Takeover Proposal (and, to the extent permitted thereunder, the Company shall promptly take all steps necessary to terminate any waiver that may have been heretofore granted, to any person other than Parent or any Company Acquisition Proposalof Parent’s Affiliates, under any such provisions) or (v) fail to enforceauthorize any of, or grant commit or agree to do any waiver or release underof the foregoing. Without limiting the foregoing, it is agreed that any standstill or similar agreement with respect to violation of the restrictions set forth in the preceding sentence by any class of equity securities Representative of the Company or any of its SubsidiariesSubsidiaries shall be a breach of this Section 4.02(a) by the Company. The Company shall, and shall cause its Subsidiaries and its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished in connection therewith. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval, in response to a bona fide written Takeover Proposal that the Board of Directors of the Company (acting through the Special Committee, if then in existence) determines in good faith (after consultation with its outside legal advisors and a financial advisor of nationally recognized reputation) constitutes or could reasonably be expected to lead to a Superior Proposal, and which Takeover Proposal was not solicited after the date hereof in violation of this Section 4.02(a) and was made after the date hereof and did not otherwise result from a breach of this Section 4.02(a), the Company may, subject to compliance with this Section 4.02, (x) furnish information with respect to the Company and its Subsidiaries to the person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive to such person than the provisions of the Confidentiality Agreement (excluding paragraphs 6 and 7 of the Confidentiality Agreement), provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal, if and only to the extent that in connection with the foregoing clauses (x) and (y), the Board of Directors of the Company (acting through the Special Committee, if then in existence) concludes in good faith (after consultation with its outside legal advisors) that failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Xerox Corp), Voting Agreement (Affiliated Computer Services Inc)
No Solicitation by the Company. (a) From Subject to the provisions of this Section 5.5, from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Termination Date, the Company agrees that it shall not, and shall cause its Subsidiaries, and its and their respective directors and officers not to, and shall use reasonable best efforts to cause its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and its Subsidiaries other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), Representatives not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly encourage or knowingly facilitate any inquiry regarding, or knowingly encourage the making or submission of any proposal, offer or indication of interest that constitutes, or would reasonably be expected to lead to, or result in, a Company Acquisition Alternative Proposal, (ii) enter into engage in, knowingly encourage, continue or otherwise participate in any discussions or negotiations withwith any Person regarding a Company Alternative Proposal, or any communications regarding or any inquiry, proposal or offer that would reasonably be expected to lead to, or result in, a Company Alternative Proposal (except to notify such Person that the provisions of this Section 5.5 prohibit any such discussions or negotiations), (iii) furnish any nonpublic information relating to the Company or any of its Subsidiaries in connection with or afford access to for the business, properties, assets, books or records purpose of the facilitating a Company Alternative Proposal or any inquiry, proposal, offer or indication of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party interest that the Company knows, or should would reasonably be expected to know, is seeking to makelead to, or has maderesult in, a Company Acquisition Proposal, (iii) (A) fail Alternative Proposal and request the prompt return or destruction of any confidential information provided to make, or withdraw or qualify, amend or modify any third party in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against connection with any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), Alternative Proposal; (iv) take recommend or enter into any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” other letter of intent, memorandum of understandings, agreement in principle, option agreement, acquisition agreement, merger agreement, joint venture agreement, partnership agreement or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to a Company Alternative Proposal (except for confidentiality agreements permitted under Section 5.5(b)); (v) approve any class of equity securities transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the Company DGCL; or (vi) adopt, approve, endorse, authorize, agree or publicly propose to adopt, approve, endorse or authorize to do any of its Subsidiariesthe foregoing or otherwise knowingly facilitate any effort or attempt to make a Company Alternative Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Enerflex Ltd.), Agreement and Plan of Merger (Exterran Corp)
No Solicitation by the Company. (a) From Except as expressly permitted by this Section 4.2, the Company shall and shall cause each of its Affiliates and its Representatives to: (i) immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and promptly (but in any event within one (1) business day) after the date of this Agreement Agreement, if not already done so prior to the date of this Agreement, instruct any Person who entered into a confidentiality agreement with the Company that has not expired or been terminated in connection with any actual or potential Acquisition Proposal to return or destroy all such information or documents in accordance with the terms of such confidentiality agreement and (ii) from the date hereof until the earlier of the Effective Time and or, if earlier, the termination of this Agreement in accordance with its termsArticle VI, except as otherwise set forth in this Section 6.03, the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (iA) solicit, initiate or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the submission making of any Company proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (iiB) enter into other than informing Persons of the provisions contained in this Section 4.2, engage in, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any other Person any non-public information relating in connection with or for the purpose of encouraging or facilitating, an Acquisition Proposal, or (C) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to, or take any action to support or in furtherance of, an Acquisition Proposal. Except to the extent necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 4.2 (and in such case only in accordance with the terms hereof), (i) the Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, any confidentiality or standstill provision in any agreement to which the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of is a party and (ii) the Company or any of shall, and shall cause its Subsidiaries to, otherwise cooperate in enforce the confidentiality and standstill provisions of any way withsuch agreement, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that and the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publiclyshall, and without qualification (x) recommend against shall cause its Subsidiaries to, immediately take all steps necessary to terminate any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendationwaiver that may have been heretofore granted, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company Person other than Parent or any of its SubsidiariesParent’s Affiliates, under any such provisions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (XPO Logistics, Inc.), Agreement and Plan of Merger (Con-Way Inc.)
No Solicitation by the Company. (a) From After the date of this Agreement until the earlier of hereof and prior to the Effective Time and the or earlier termination of this Agreement in accordance with Agreement, neither the Company nor any of its termsSubsidiaries nor any of the officers, except as otherwise set forth in this Section 6.03directors or employees of the Company or its Subsidiaries shall, and the Company shall not, and shall use reasonable best efforts to cause its Subsidiaries, and its and its Subsidiaries’ officersattorneys, directors, employeesaccountants, investment bankers, attorneysfinancial advisors, accountants, consultants agents and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), ) not to, directly or indirectly, : (i) solicit, initiate initiate, encourage or take induce any action to knowingly facilitate inquiry with respect to, or knowingly encourage the making, submission of any or announcement of, a Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations withregarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 5.02), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. The Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or afford access any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the business, properties, assets, books or records of Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiariesor their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (iVOW, Inc.), Agreement and Plan of Merger (Crdentia Corp)
No Solicitation by the Company. (a) From Except as expressly permitted by this Section 5.4, the Company shall, shall cause each of its affiliates and its and their respective officers, directors and employees to, and shall use its reasonable best efforts to cause its and their respective agents, financial advisors, investment bankers, attorneys, accountants and other representatives (a person’s officers, directors, employees, agents, financial advisors, investment bankers, attorneys, accountants and other representatives being collectively its “Representatives”) to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to or may reasonably be expected to lead to a Takeover Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement) or otherwise request, any person that has executed a confidentiality or non-disclosure agreement within the 24-month period prior to the date of this Agreement in connection with any actual or potential Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its Representatives and (ii) until the earlier of the Effective Time and or, if earlier, the termination of this Agreement in accordance with its termsArticle VII, except as otherwise set forth in this Section 6.03, the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (i1) solicit, initiate or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the submission making of any Company Acquisition proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal, (ii2) enter into engage in, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any other person any non-public information relating in connection with or for the purpose of encouraging or facilitating, a Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 5.4 and to limit its conversation or other communication exclusively to such referral), or (3) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Takeover Proposal (other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.4(b) or (y) in accordance with Section 7.1(j)). Except to the extent necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 5.4 (and in such case only in accordance with the terms hereof), (A) the Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, (x) any standstill provision in any agreement to which the Company or any of its Subsidiaries is a party or afford access (y) any confidentiality provision in any agreement to the business, properties, assets, books or records of which the Company or any of its Subsidiaries is a party other than, with respect to this clause (y), any confidentiality provision, the waiver, amendment, modification or permission of which does not, and would not be reasonably likely to, otherwise cooperate facilitate, encourage or relate in any way with, to a Takeover Proposal or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that a potential the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Takeover Proposal and (yB) reaffirm the Company Board Recommendationshall, in each caseand shall cause its Subsidiaries to, within ten (10) Business Days after a Company Acquisition Proposal is made public or enforce such confidentiality and standstill provisions of any request by Parent to do so will be treated as a withdrawal of such agreement, and the Company Board Recommendation for purposes hereof)shall, (B) fail and shall cause its Subsidiaries to, immediately take all steps within their power necessary to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommendterminate any waiver that may have been heretofore granted, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company person other than Parent or any of its SubsidiariesParent’s affiliates, under any such provisions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Atwood Oceanics Inc), Agreement and Plan of Merger (Ensco PLC)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the First Merger Effective Time and or the termination of this Agreement in accordance with its termsAgreement, except as otherwise set forth in this Section 6.03Section 6.02, the Company shall not, and shall cause its SubsidiariesSubsidiaries not to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), ) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, knows is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) approve any transaction (other than the transactions contemplated by this Agreement) under, or any Person becoming a “related company” under, the Eleventh Article of the Restated Certificate of Incorporation of the Company as in effect on the date hereof, or take any other action to make any other antitakeover provision in the Restated Certificate of Incorporation of the Company inapplicable to any Third Party or Company Acquisition Proposal or (vi) fail to enforce, enforce or grant any waiver or release under, under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its SubsidiariesSubsidiaries unless the Board of Directors of the Company determines after consulting with its outside legal counsel that the failure to waive such provision would be inconsistent with its fiduciary duties under Applicable Law (provided that the obligation not to fail to enforce any such standstill or similar agreement under this Section 6.02(a)(vi) shall apply with respect to known breaches of such agreements only).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Humana Inc), Agreement and Plan of Merger (Aetna Inc /Pa/)
No Solicitation by the Company. (a) The Company shall, and the Company shall direct and use its reasonable efforts to cause the Bank and the Bank’s affiliates, directors, officers, employees, agents and representatives (including without limitation any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or the Bank) to, immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal. From the date of this Agreement until the earlier of through the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Time, the Company shall not, and nor shall cause it authorize or permit the Bank or any of its Subsidiaries, and its and its Subsidiaries’ officers, or the Bank’s directors, employeesofficers or employees or any investment banker, investment bankersfinancial advisor, attorneysattorney, accountants, consultants and accountant or other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not representative retained by it to, directly or indirectlyindirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to knowingly facilitate or knowingly encourage that is likely to result in, any inquiries or the submission making of any Company proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) except in accordance with Section 9.1(f) hereof, enter into or any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations with, furnish regarding any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (viv) fail make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal; provided, however, that prior to enforcethe twentieth (20th) day after the date of distribution (the “Proxy Statement Distribution Date”) of the Proxy Statement to the stockholders of the Company (which Proxy Statement Distribution Date shall be no later than three (3) business days after the date of filing of the final Proxy Statement with the SEC), or grant any waiver or release underif, any standstill or similar agreement and only to the extent that, the Board of Directors of the Company determines in good faith, after consultation with its outside legal and financial advisors, that the failure to do so would reasonably be expected to breach the Board’s fiduciary duties under applicable law, the Company may, in response to a bona fide written Acquisition Proposal not solicited in violation of this Section 7.2(a) that the Board of Directors of the Company believes in good faith constitutes a Superior Proposal, subject to providing forty-eight (48) hour prior written notice to Buyer of the Board’s decision to take such action and identifying the person making the proposal and all the material terms and conditions of such proposal (the “Company Notice”) and compliance with Section 7.2(b) hereof, following delivery of the Company Notice, (1) furnish information with respect to any class of equity securities of the Company to any person making such a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) on terms no more favorable to such person than the terms contained in any such agreement between the Company and Buyer, and (2) participate in discussions or any of its Subsidiariesnegotiations regarding such a Superior Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pacifica Bancorp Inc), Agreement and Plan of Merger (Ucbh Holdings Inc)
No Solicitation by the Company. (a) Company Takeover Proposal. The Company will, and will cause the Company Subsidiaries and its and their Representatives (collectively, the “Company Representatives”) to, immediately cease and cause to be terminated all existing activities, discussions and negotiations with any parties conducted heretofore with respect to, or that could reasonably be expected to lead to, any Company Takeover Proposal, terminate all physical and electronic dataroom access previously granted to any such parties and their representatives and request the prompt return or destruction of all confidential information previously furnished in connection therewith. From and after the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Agreement, the Company shall will not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case nor will it permit any of the CompanyCompany Subsidiaries to, nor will it authorize or permit any of the Company Special Committee) (collectively, “Representatives”), not Representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage, or knowingly take any other action designed to knowingly facilitate facilitate, any inquiries or knowingly encourage the submission making of any proposal that constitutes, or would reasonably be expected to lead to, a Company Acquisition Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, (iii) initiate or participate in any way in any discussions or negotiations withregarding, or furnish or disclose to any person (other than a party hereto) any information relating with respect to, or knowingly take any other action to facilitate the making of any proposal that constitutes, a Company Takeover Proposal, (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person (other than Parent) with respect to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition ProposalSubsidiaries, or (v) fail to enforceauthorize any of, or grant commit or agree to do any waiver of the foregoing; provided, however, that, at any time prior to the Appointment Time, in response to an unsolicited bona fide written Company Takeover Proposal that the Board of Directors of the Company determines in good faith (after consultation with the legal and financial advisors to the Company) constitutes or release underwould reasonably be expected to lead to a Superior Proposal, any standstill or similar agreement and which Company Takeover Proposal was made after the date hereof and did not otherwise result from a material breach of this Section 5.2, the Company may, if and to the extent that its Board of Directors determines in good faith (after consulting with the legal and financial advisors to the Company) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under the DGCL, and subject to compliance with Section 5.2(c), (i) furnish information with respect to any class of equity securities of the Company and the Company Subsidiaries to the person making such Company Takeover Proposal (and its representatives) pursuant to a confidentiality agreement that the Company determines in good faith is not less restrictive of such person than the Confidentiality Agreement; provided, however, that all such information has previously been provided to Parent or any of is provided to Parent prior to or substantially concurrent with the time it is provided to such person, and (ii) participate in discussions or negotiations with the person making such Company Takeover Proposal (and its Subsidiariesrepresentatives) regarding such Company Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Arch Coal Inc), Agreement and Plan of Merger (International Coal Group, Inc.)
No Solicitation by the Company. (a) From Subject to Section 7.11(b), the Company agrees that from and after the date of this Agreement until Agreement, it shall (i) immediately cease and terminate, and cause to be ceased and terminated, all of its and its Representatives’ discussions and negotiations with any other Person (other than Parent or its Affiliates) regarding any Company Alternative Proposal (as hereinafter defined), (ii) promptly request, and cause to be requested that, each Person that has received confidential information in connection with a possible Company Alternative Proposal within the earlier last twelve (12) months return to the Company or destroy all confidential information heretofore furnished to such Person by or on behalf of the Effective Time Company and Company Subsidiaries and (iii) not grant any waiver or release under or knowingly fail to enforce any confidentiality, standstill or similar agreement entered into or amended during the termination twelve (12) months prior to the date hereof in respect of a proposed Company Alternative Proposal (such agreement, a “Company Standstill Agreement”) unless the Board of the Company concludes in good faith that a failure to take any action described in this clause (iii) would reasonably likely be inconsistent with the directors’ fiduciary obligations to the Company’s stockholders under applicable Law. From and after the date of this Agreement in accordance with its termsAgreement, except as otherwise set forth in this Section 6.03subject to Section 7.11(b) and Section 9.3(b), the Company shall not, and directly or indirectly, nor shall cause the Company authorize or permit any Company Subsidiary or any of its Subsidiariesor their respective directors, and its and its Subsidiaries’ officers, directorsmembers, employees, investment bankersrepresentatives, agents, attorneys, consultants, contractors, accountants, consultants financial advisors and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committeea “Representative”) (collectively, “Representatives”), not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage or facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to a Company Acquisition Alternative Proposal, (ii) except for confidentiality agreements entered into pursuant to the proviso to the first sentence of Section 7.11(b) or a definitive agreement entered into or to be entered into concurrently with a termination of this Agreement by the Company pursuant to Section 9.3(b), approve or enter into a letter of intent, memorandum of understanding or participate in other contract with any discussions Person, other than Parent and Merger Sub, for, constituting or negotiations withotherwise relating to a Company Alternative Proposal, furnish (iii) provide or cause to be provided any information or data relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate Subsidiary in any way connection with, or knowingly assist, participate in, facilitate or knowingly encourage any effort byin response to, any Third Party that the Company knowsAlternative Proposal by any Person, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) terminate, amend, waive or permit the waiver of any voting restriction contained in the organizational or governing documents of the Company, or take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations contemplated by paragraph (a)(1) of the State of Delaware, including Section 203 of the Delaware LawDGCL. Without limiting the generality of the foregoing, inapplicable to the Company acknowledges and agrees that, in the event any Third Party officer, director or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities financial advisor of the Company takes any action that if taken by the Company would be a breach of this Section 7.11, the taking of such action by such officer, director or any financial advisor shall be deemed to constitute a breach of its Subsidiariesthis Section 7.11 by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Baker Hughes Inc), Agreement and Plan of Merger (Halliburton Co)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the The Company shall not, and not nor shall cause it authorize or permit any of its Subsidiaries, and any of its and its Subsidiaries’ officers, or their respective directors, employeesofficers or employees or any investment banker, investment bankersfinancial advisor, attorneysattorney, accountantsaccountant or other advisor, consultants and other agents, advisors and representatives (including, in the case of the Company, agent or representative retained by the Company Special Committee) or any Subsidiary in connection with the transactions contemplated by this Agreement (collectively, “"Representatives”), not ") to, directly or indirectlyindirectly through another person, (i) solicit, initiate or take any action to initiate, cause, knowingly facilitate encourage, or knowingly encourage facilitate, any inquiries or the submission making of any proposal that constitutes or is reasonably likely to lead to a Company Acquisition Proposal, Takeover Proposal or (ii) enter into or other than solely informing persons of the provisions contained in this Section 5.02, participate in any discussions or negotiations regarding any Company Takeover Proposal, or furnish to any person any information in connection with, furnish or in furtherance, of any information relating to Company Takeover Proposal. Without limiting the Company or foregoing, it is agreed that any violation of its Subsidiaries or afford access to the business, properties, assets, books or records restrictions set forth in the preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Section 5.02(a) by the Company. The Company shall, and shall cause its Subsidiaries and instruct its Representatives to, otherwise cooperate in immediately cease and cause to be terminated all existing discussions or negotiations with any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement person previously conducted with respect to any class Company Takeover Proposal and request the prompt return or destruction of equity securities all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval (and in no event after obtaining such Company Stockholder Approval), in response to an unsolicited bona fide written Company Takeover Proposal made after the date hereof that the Company Board determines in good faith (after receiving the advice of a financial advisor of nationally recognized reputation (the Parent acknowledges and agrees that each of the financial advisors engaged by the Company in connection with entering into this Agreement satisfy this requirement) and outside counsel) constitutes or is reasonably likely to constitute a Company Superior Proposal, the Company may if the Company Board determines in good faith (after receiving the advice of its outside counsel) that there is a reasonable probability that failure to take such action would result in the Company Board breaching its fiduciary duties to the stockholders of the Company under applicable Law, and subject to compliance with Section 5.02(c) and after giving Parent prompt written notice of such determination, (A) furnish information with respect to the Company and its Subsidiaries to the person making such Company Takeover Proposal (and its Representatives) pursuant to a confidentiality agreement not less restrictive of such person than the Confidentiality Agreement (other than the ninth paragraph thereto), provided that all such information (to the extent that such information has not been previously provided or any of made available to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrent with the time it is provided or made available to such person, as the case may be, and (B) participate in discussions or negotiations with the person making such Company Takeover Proposal (and its SubsidiariesRepresentatives) regarding such Company Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pacificare Health Systems Inc /De/), Agreement and Plan of Merger (Unitedhealth Group Inc)
No Solicitation by the Company. (a) From Except as expressly permitted by this Section 5.4, the date Company shall and shall cause each of its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its other Representatives: (i) to immediately cease and cause to be terminated any solicitation, knowing encouragement, discussions or negotiations with any persons (other than Parent) that is ongoing with respect to a Company Takeover Proposal and (ii) not to, directly or indirectly, (A) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any information in connection with or for the purpose of soliciting, initiating, encouraging or facilitating, a Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Agreement until Section 5.4, and provided, that the earlier Company and its Representatives may make inquiries of a person making an unsolicited Company Takeover Proposal (and its Representatives) to ascertain facts regarding such Company Takeover Proposal for the sole purpose of the Effective Time Company Board of Directors informing itself about such Company Takeover Proposal and the termination person making it, but in each case limiting its communication exclusively to such referral and such ascertaining of this Agreement facts), or (C) approve, adopt, recommend or enter into, or propose to approve, adopt, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in accordance principle (whether written or oral, binding or nonbinding) with its terms, except as otherwise set forth in this Section 6.03, the respect to a Company Takeover Proposal. The Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), controlled affiliates not to, directly release any third party from, or indirectlywaive, (i) solicitamend or modify any provision of, initiate or take grant permission under, or fail to enforce, any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate standstill provision in any discussions or negotiations with, furnish any information relating agreement to which the Company or any of its Subsidiaries or afford access to the businesscontrolled affiliates is a party; provided that, properties, assets, books or records of if the Company or any Board of its Subsidiaries toDirectors determines in good faith, otherwise cooperate in any way withafter consultation with the Company’s outside legal counsel, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably failure to take such action would be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parentinconsistent with the directors’ fiduciary duties under applicable Laws, the Company Board Recommendation (it being understood that may waive any failure such standstill provision applicable to publicly, and without qualification (x) recommend against any such persons solely to the extent necessary to permit a third party to make a Company Acquisition Takeover Proposal and (y) reaffirm to the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its SubsidiariesDirectors.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Littelfuse Inc /De), Agreement and Plan of Merger (Ixys Corp /De/)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.036.3, the Company shall not, and shall cause its Subsidiaries, controlled Affiliates and its and its Subsidiaries’ their respective officers, directorsdirectors and employees not to, employees, and shall use reasonable best efforts to cause its and their respective investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), ) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate (including by way of providing non-public information) or knowingly encourage or induce the submission of any Company Acquisition Proposal or any inquiry or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party (excluding Affiliates) that the Company knows, or should reasonably be expected to know, is considering, seeking to make, or has made, a Company Acquisition Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Acquisition Proposal, ; (iii) (A) fail to make, or withdraw or qualify, amend or modify modify, in each case, in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or Prospectus, (C) recommend, adopt or approve any Company Acquisition Proposal, (D) enter into or publicly propose approve, recommend or declare advisable for the Company or any of its Subsidiaries to recommendexecute or enter into, adopt any agreement, letter of intent, understanding, agreement in principle or approve other similar arrangement (other than a Company Acceptable Confidentiality Agreement) in connection with any Company Acquisition Proposal (any of the foregoing in this clause (iii(iii), a “Company Adverse Recommendation Change”), ; (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws Laws and regulations of the State of Delaware, including Section 203 of the Delaware LawDGCL, inapplicable to any Third Party or any Company Acquisition Proposal, ; or (v) fail resolve, propose or agree to enforce, or grant do any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiariesforegoing.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the The Company shall not, and nor shall cause it authorize or permit any of its Subsidiaries, and its and its Subsidiaries’ officers, any of their respective directors, employeesofficers or employees or any investment banker, investment bankersfinancial advisor, attorneysattorney, accountantsaccountant or other advisor, consultants and other agents, advisors and representatives (including, in the case agent or representative retained by it or any of the Company, the Company Special Committee) (collectively, “Representatives”), not its Subsidiaries or controlled Affiliates to, directly or indirectly, (i) solicit, initiate or take any action to knowingly initiate, facilitate or knowingly encourage encourage, directly or indirectly, the submission initiation of any a Company Acquisition Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Company Proposal, or agree to approve or endorse any Company Proposal or enter into any agreement, arrangement or understanding that to the Knowledge of the Company would require the Company to abandon, terminate or fail to consummate the Merger, (iii) initiate or participate in any discussions or negotiations with, or furnish or disclose any information relating to the Company to, any Person (other than Parent or Merger Sub or any of its Subsidiaries their representatives) in connection with any Company Proposal or afford access (iv) facilitate or further in any other manner any inquiries or the making or submission of any proposal that constitutes, or may reasonably be expected to the businesslead to, propertiesany Company Proposal. The Company shall, assets, books or records of the Company or any of and shall cause its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Company Proposal. The Company shall not participate, directly or indirectly, in any negotiations regarding, or furnish to any other Person, any information with respect to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, or attempt by any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent other person to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (seek any of the foregoing activities prohibited by in this clause (iii)section. Should the Company receive any proposal, a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” inquiry or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement contact with respect to a Company Proposal or any class of equity securities of the other activities prohibited by this section, it will as promptly as practicable, and in any event within two Business Days, give written notice thereof to Parent and also shall provide Parent with such information regarding such proposal, inquiry or contact as Parent reasonably may request. The Company shall be liable for any action taken by any of its Subsidiaries or any of the Company’s or its Subsidiaries’ respective directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it or any of its SubsidiariesSubsidiaries or controlled Affiliates, in violation of this Section 6.02.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Eye Care Centers of America Inc)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement in accordance with its termsSection 7.1, except as otherwise set forth in expressly permitted by this Section 6.035.4, the Company agrees that it shall not, and shall cause its Subsidiaries, Subsidiaries and direct its and its Subsidiaries’ their respective directors, officers, directors, employees, investment bankers, attorneys, accountantsconsultants, consultants accountants and other agentsadvisors, advisors and agents or representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), ) not to, directly or indirectly, (i) initiate, solicit, initiate or take any action to knowingly facilitate assist, knowingly induce or knowingly encourage or facilitate (including by providing information) any inquiries, proposals or offers with respect to, or the submission making, submission, announcement or completion of, any proposal or offer that constitutes, or would be reasonably expected to lead to, a Company Acquisition Proposal or (ii) engage in, continue or participate in any negotiations or discussions with any Persons other than Parent, Merger Sub and their respective Affiliates and Representatives to the extent acting on behalf of Parent or Merger Sub (any such Person, a “Third Party”) (other than to refer the inquiring Person to this Section 5.4) concerning any Company Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Company Acquisition Proposal, (iiiii) enter into furnish or participate in provide or cause to be furnished or provided any discussions non-public information or negotiations with, furnish any information data relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way connection with, or knowingly assistfor the purpose of soliciting, participate ininitiating, facilitate encouraging or knowingly encourage any effort byfacilitating, or in response to, any Third Party inquiry, proposal or offer that the Company knows, or should constitutes of would reasonably be expected to know, is seeking lead to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (viv) fail resolve or agree to enforcedo any of the foregoing. The Company agrees that it will, and will cause its Subsidiaries and direct its and their respective Representatives to, (x) immediately cease and cause to be terminated any existing activities, discussions or grant negotiations with any waiver or release under, any standstill or similar agreement Third Party conducted heretofore with respect to any class of equity securities of Company Acquisition Proposal, (y) deliver a written notice to any such Third Party explicitly stating that the Company is terminating all discussions and negotiations with such Third Party with respect to any Company Acquisition Proposal, and requesting that such Third Party promptly return or any of destroy all confidential or proprietary information concerning the Company and its Subsidiaries, and (z) promptly terminate access of any such Third Party to any due diligence or electronic or physical data room with respect to any Company Acquisition Proposal; provided, that nothing in this Agreement shall restrict the Company from permitting a Person to request the waiver of a “standstill” or similar obligation or from granting such a waiver, in each case to the extent necessary to comply with fiduciary duties under applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Spectrum Pharmaceuticals Inc)
No Solicitation by the Company. (ai) From the date of Unless and until this Agreement until the earlier of the Effective Time and the termination of this Agreement is terminated in accordance with its termsthe provisions of Article VII, except as otherwise set forth in this Section 6.03without the prior written consent of Parent, neither the Company nor any Representative of the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectlyindirectly (A) initiate, (i) solicit, initiate or take any action to knowingly facilitate seek or knowingly encourage the submission of or support any Company inquiries, proposals or offers that constitute or may reasonably be expected to lead to, an Acquisition Proposal, (iiB) enter into engage or participate in in, or knowingly facilitate, any discussions or negotiations withregarding any inquiries, furnish any information relating to the Company proposals or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withoffers that constitute, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should may reasonably be expected to knowlead to, is seeking to make, or has made, a Company an Acquisition Proposal, (iiiC) furnish to any Person other than Parent or Merger Sub any non-public information that could reasonably be expected to be used for the purposes of formulating any Acquisition Proposal, (AD) waive, terminate, modify or release any Person (other than Parent and its Affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, or (E) enter into any letter of intent, agreement in principle or other similar type of agreement relating to an Acquisition Proposal, or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to makeconsummate the transactions contemplated hereby or resolve, propose or agree to do any of the foregoing; provided, however, that prior to obtaining the Company Member Approval, the Company may take the following actions in response to an unsolicited bona fide written Acquisition Proposal received by the Company or its Representatives after the date hereof that the Company Board has determined, in good faith, after consultation with its outside counsel and independent financial advisors, constitutes, or withdraw would reasonably be expected to lead to, a Company Superior Proposal: (1) furnish nonpublic information regarding the Company to the Person making the Acquisition Proposal to the Company (a “Company Qualified Bidder”) and (2) engage in discussions or qualifynegotiations with the Company Qualified Bidder and its representatives with respect to such Acquisition Proposal; provided that (w) the Company receives from the Company Qualified Bidder an executed confidentiality agreement the terms of which are not less restrictive to such Person than those contained in the Confidentiality Agreement, amend or modify and containing additional provisions that expressly permit the Company to comply with the terms of this Section 5.06 (a copy of such confidentiality agreement shall promptly, and in any manner adverse event within twenty-four (24) hours, be provided to Parent for informational purposes only), (x) the Company contemporaneously supplies to Parent any such nonpublic information or access to any such nonpublic information to the extent it has not been previously provided or made available to Parent, (y) the Company has not breached this Section 5.06, and (z) the Company Board Recommendation (it being understood determines in good faith, after consultation with its outside legal counsel and financial advisors, that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm take such actions would be inconsistent with the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal fiduciary duties of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiariesunder applicable Laws.
Appears in 1 contract
No Solicitation by the Company. (a) From Neither the date of this Agreement until the earlier of the Effective Time Company nor any Company Subsidiary shall (and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ the officers, directors, employees, representatives and agents of the Company and each Company Subsidiary, including, but not limited to, investment bankers, attorneys, attorneys and accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to), directly or indirectly, (i) encourage, solicit, participate in or initiate discussions or take negotiations with, or provide any action to knowingly facilitate information to, any Person or knowingly encourage the submission group (other than Parent, any of its Affiliates or representatives) concerning any Company Acquisition Proposal, except that nothing contained in this Section 5.8(a) or -------------- any other provision hereof shall prohibit the Company or the Company Board of Directors from (i) taking and disclosing to the Company's shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) enter into making any disclosure to the Company's shareholders if, in the good faith judgment of the Board, after consultation with outside counsel, failure to make such disclosures would be contrary to its obligations under applicable law, provided that the Company may not, except as permitted by Section 5.8(c), withdraw or participate in modify, or -------------- propose to withdraw or modify, its position with respect to the Merger. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations withwith any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, furnish any information relating prior to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records approval of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that Merger and this Agreement at the Company knowsShareholders Meeting (or, or should reasonably be expected if the Merger has not been consummated within thirty (30) days after the Company Shareholders Meeting (except by reason of the Company's failure to knowfulfill any obligation under this Agreement), is seeking to make, or has made, a such actions occur more than thirty (30) days after the Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to ParentShareholder Meeting), the Company Board Recommendation (it being understood that may furnish information concerning its business, properties or assets to any failure Person pursuant to publiclyappropriate confidentiality agreements, and without qualification (x) recommend against any Company Acquisition Proposal may negotiate and (y) reaffirm the Company Board Recommendation, participate in each case, within ten (10) Business Days after discussions and negotiations with such entity or group concerning a Company Acquisition Proposal if such proposal is made public or any request by Parent to do so will be treated as a withdrawal Company Superior Proposal not solicited in violation of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any this Agreement. A Company Acquisition Proposal (any of the foregoing in this clause (iii), will be a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.Superior Proposal only if:
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement hereof until the earlier of the Effective Time and Closing Date or, if earlier, the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Article VIII, the Company and its Subsidiaries shall not, and the Company shall instruct and use its reasonable best efforts to cause its Subsidiaries, and their representatives acting on its and its Subsidiaries’ officerstheir behalf, directorsnot to (i) initiate or continue any negotiations with any Person with respect to, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in or provide any non-public information or data concerning the case Company or any of the Company’s Subsidiaries to any Person relating to, an Acquisition Proposal or afford (or continue to afford) to any Person access to the business, properties, assets or personnel of the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage of the submission of any Company Company’s Subsidiaries in connection with an Acquisition Proposal, (ii) enter into any acquisition agreement, merger agreement or participate similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any discussions or negotiations with, furnish any information other agreement relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company an Acquisition Proposal, (iii) (A) fail to makegrant any waiver, amendment or withdraw release under any confidentiality agreement or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposalstate, or (viv) fail to enforceotherwise knowingly facilitate any such inquiries, proposals, discussions, or grant negotiations or any waiver effort or release underattempt by any Person to make an Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, any standstill or similar agreement the Company and its Subsidiaries and their respective representatives shall not be restricted pursuant to the foregoing sentence with respect to any class of equity securities of actions explicitly contemplated this Agreement (including the PIPE Investment) or the Ancillary Agreements. From and after the date hereof, the Company or shall, and shall instruct its officers and directors to, and the Company shall instruct and cause its representatives acting on its behalf, its Subsidiaries and their respective representatives (acting on their behalf) to, immediately cease and terminate all discussions and negotiations with any of Persons that may be ongoing with respect to an Acquisition Proposal (other than with Parent and its Subsidiariesrepresentatives).
Appears in 1 contract
Samples: Business Combination Agreement and Plan of Merger (Nebula Caravel Acquisition Corp.)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Subject to Sections 5.7(b)-(f), the Company shall notagrees that neither it nor any subsidiary of the Company shall, and that it shall cause its Subsidiaries, and direct its and its Subsidiaries’ their respective officers, directors, employees, agents and representatives, including any investment bankersbanker, attorneys, accountants, consultants and other agents, advisors and representatives attorney or accountant retained by it or any of its subsidiaries (including, in the case of the Company, the Company Special Committee"Representatives") (collectively, “Representatives”), not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage (including by providing information) or take any action to knowingly facilitate any inquiries, proposals or knowingly encourage offers with respect to, or the submission of any making or completion of, a Company Acquisition Alternative Proposal, (ii) enter into engage or participate in any discussions negotiations concerning, or negotiations with, furnish provide or cause to be provided any non-public information or data relating to the Company or any of its Subsidiaries subsidiaries in connection with, or afford access have any discussions (other than to state that they are not permitted to have discussions) with any person relating to, an actual or proposed Company Alternative Proposal, or otherwise knowingly encourage or knowingly facilitate any effort or attempt to make or implement a Company Alternative Proposal, (iii) approve, endorse or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to any Company Alternative Proposal, (iv) amend or grant any waiver or release under any standstill or similar agreement, (v) approve any transaction by which any third party would otherwise have become an "interested stockholder" under Section 3-601 of the businessMGCL, propertiesor (vi) agree to do any of the foregoing; provided, assetshowever, books that it is understood and agreed that any determination or records action by the Company Board permitted under Sections 5.7(c) or (d) or Section 7.1(c)(iii) shall not be deemed to be a breach or violation of this Section 5.7(a). The Company acknowledges and agrees that any violation of the restrictions set forth in the preceding sentence by any Representative of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that subsidiaries shall be deemed to constitute a breach of this Section 5.7(a) by the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its SubsidiariesCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Kratos Defense & Security Solutions, Inc.)
No Solicitation by the Company. (a) From the date of Except as expressly permitted by this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Section 6.3, the Company shall notshall, and shall cause each of its SubsidiariesSubsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ officersRepresentatives: (i) to immediately cease and cause to be terminated any solicitation, directorsencouragement, employees, investment bankers, attorneys, accountants, consultants discussions or negotiations with any persons (other than Parent and other agents, advisors its Subsidiaries (including Acquiror) and representatives their respective Representatives) that may be ongoing with respect to a Company Takeover Proposal and (including, in the case of the Company, the Company Special Committeeii) (collectively, “Representatives”), not to, directly or indirectly, (iA) solicit, initiate initiate, knowingly encourage or take any action to knowingly facilitate any inquiries regarding, or knowingly encourage the submission making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Acquisition Takeover Proposal, (iiB) enter into engage in, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any other person any information relating to in connection with or for the Company or any purpose of its Subsidiaries or afford access to the businesssoliciting, propertiesinitiating, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, knowingly encouraging or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has madefacilitating, a Company Acquisition ProposalTakeover Proposal (other than (x) solely in response to an unsolicited inquiry, to refer the inquiring person to the terms of this Section 6.3 and to limit its communication exclusively to such referral or (iiiy) (A) fail upon receipt of a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a breach of this Section 6.3, solely to make, the extent necessary to ascertain facts or withdraw or qualify, amend or modify in any manner adverse clarify terms with respect to Parent, a Company Takeover Proposal for the Company Board Recommendation (it being understood that any failure of Directors to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm be able to have sufficient information to make the Company Board Recommendation, determination described in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereofSection 6.3(c)), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommendapprove, adopt adopt, publicly recommend or approve enter into, or publicly propose to recommendapprove, adopt adopt, recommend or approve enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Acquisition Takeover Proposal (any of the foregoing other than an Acceptable Confidentiality Agreement entered into in this clause (iiiaccordance with Section 6.3(c), a “Company Adverse Recommendation Change”), (ivD) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulationcombination” or other similar anti-takeover laws and regulations of the State of Delawarestatute or regulation (including any transaction under, including or a third party becoming an “interested stockholder” under, Section 203 of the Delaware Law, DGCL) inapplicable to any Third Party person (other than Acquiror and its Affiliates) or to any transactions constituting or contemplated by a Company Acquisition Takeover Proposal, (E) otherwise cooperate with or assist or participate in any such inquiries, proposals, offers, discussions or negotiations or (vF) resolve or agree to do any of the foregoing. The Company shall not, and shall cause its Subsidiaries not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or knowingly fail to enforce, or grant any waiver or release under, any standstill or similar agreement confidentiality obligations with respect to a Company Takeover Proposal or similar matter or any class of equity securities of standstill provision in any agreement to which the Company or any of its SubsidiariesSubsidiaries is a party; provided, that, prior to the time the Company Stockholder Approval is obtained, but not after, the Company may waive any standstill or similar provisions to the extent necessary to permit a person or group to make, on a confidential basis to the Company Board of Directors, a Company Takeover Proposal, conditioned upon such person agreeing to disclosure of such Company Takeover Proposal to Acquiror, in each case as contemplated by this Section 6.3 (provided, further, that the Company may only take such action if the Company Board of Directors determines in good faith (after consultation with its outside financial advisor and outside legal counsel) that the failure of the Company Board of Directors to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law). None of the Company or its Subsidiaries shall enter into any confidentiality agreement or other agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from (x) providing to Acquiror or any of its Affiliates or Representatives the information required to be provided pursuant to this Section 6.3 or (y) otherwise complying with this Section 6.3. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect.
Appears in 1 contract
No Solicitation by the Company. (a) From Except as set forth in Sections 7.11(b) through (d) hereof, the Company agrees that, following the date of this Agreement until and prior to the earlier of the Effective Time and or the termination of date on which this Agreement in accordance with is terminated pursuant to Section 9.1, neither it nor any Company Subsidiary shall, and that it shall use reasonable best efforts to cause its terms, except as otherwise set forth in this Section 6.03, and each of the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ Subsidiary’s officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), agents not to, directly or indirectly, (i) knowingly solicit, initiate or take encourage any action inquiry or proposal that constitutes or could reasonably be expected to knowingly facilitate or knowingly encourage the submission of any lead to a Company Acquisition Proposal, (ii) enter into provide any non-public information or participate data to any Person relating to or in connection with a Company Acquisition Proposal, engage in any discussions or negotiations with, furnish any information relating to the concerning a Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withAcquisition Proposal, or otherwise knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected attempt to know, is seeking to make, make or has made, implement a Company Acquisition Proposal, (iii) (A) fail approve, recommend, agree to makeor accept, or withdraw or qualifypropose publicly to approve, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt agree to or approve or publicly propose to recommendaccept, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (viv) fail approve, recommend, agree to enforceor accept, or grant any waiver propose to approve, recommend, agree to or release underaccept, or execute or enter into, any standstill letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Company Acquisition Proposal. Without limiting the foregoing, any violation of the restrictions set forth in the preceding sentence by any of the Company Subsidiaries or any of the Company’s or the Company Subsidiaries’ officers, directors, employees, agents or representatives (including any investment banker, attorney or accountant retained by the Company or the Company Subsidiaries) shall be a breach of this Section 7.11(a) by the Company. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any class of equity securities of Company Acquisition Proposal (except with respect to the Company or any of its Subsidiaries.transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Merger
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Subject to Sections 5.7(b)-(f), the Company shall notagrees that neither it nor any subsidiary of the Company shall, and that it shall cause its Subsidiaries, and direct its and its Subsidiaries’ their respective officers, directors, employees, agents and representatives, including any investment bankersbanker, attorneys, accountants, consultants and other agents, advisors and representatives attorney or accountant retained by it or any of its subsidiaries (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), ) not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage (including by providing information) or take any action to knowingly facilitate any inquiries, proposals or knowingly encourage offers with respect to, or the submission of any making or completion of, a Company Acquisition Alternative Proposal, (ii) enter into engage or participate in any discussions negotiations concerning, or negotiations with, furnish provide or cause to be provided any non-public information or data relating to the Company or any of its Subsidiaries subsidiaries in connection with, or afford access have any discussions (other than to state that they are not permitted to have discussions) with any person relating to, an actual or proposed Company Alternative Proposal, or otherwise knowingly encourage or knowingly facilitate any effort or attempt to make or implement a Company Alternative Proposal, (iii) approve, endorse or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to any Company Alternative Proposal, (iv) amend or grant any waiver or release under any standstill or similar agreement, (v) approve any transaction by which any third party would otherwise have become an “interested stockholder” under Section 3-601 of the businessMGCL, propertiesor (vi) agree to do any of the foregoing; provided, assetshowever, books that it is understood and agreed that any determination or records action by the Company Board permitted under Sections 5.7(c) or (d) or Section 7.1(c)(iii) shall not be deemed to be a breach or violation of this Section 5.7(a). The Company acknowledges and agrees that any violation of the restrictions set forth in the preceding sentence by any Representative of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that subsidiaries shall be deemed to constitute a breach of this Section 5.7(a) by the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its SubsidiariesCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Integral Systems Inc /Md/)
No Solicitation by the Company. (a) From Subject to Section 5.2(b), the Company agrees that from and after the date of this Agreement until Agreement, it shall (i) immediately cease and terminate, and cause to be ceased and terminated, all of its, its Subsidiaries’ and their respective Representatives’ discussions and negotiations with any other Person (other than Parent or its Affiliates) regarding any Company Alternative Proposal, and (ii) promptly request that each Person that has entered into a confidentiality agreement in connection with its consideration of a possible Company Alternative Proposal within the earlier last six months return to the Company or destroy all confidential information heretofore furnished to such Person by or on behalf of the Effective Time Company and its Subsidiaries. From 39 and after the termination date of this Agreement in accordance with its termsAgreement, except as otherwise set forth in this subject to Section 6.035.2(b) and Section 7.3(b), the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to nor shall the Company authorize or permit any of its Subsidiaries or afford access to the business, properties, assets, books or records Subsidiary of the Company or any of its Subsidiaries or their respective directors, officers, members, employees, representatives, agents, attorneys, consultants, contractors, accountants, financial advisors and other advisors (a “Representative”) to, otherwise cooperate in any way with(w) solicit, or knowingly assist, participate in, facilitate initiate or knowingly encourage any effort byor knowingly facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any Third Party that the Company knowsinquiry, proposal or offer, or should the making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its unitholders) which constitutes or would be reasonably be expected to know, is seeking lead to make, or has made, a Company Acquisition Alternative Proposal, (iiix) (Aexcept for confidentiality agreements entered into pursuant to the proviso to the first sentence of Section 5.2(b) fail or a definitive agreement entered into or to makebe entered into concurrently with a termination of this Agreement by the Company pursuant to Section 7.3(b), approve or withdraw enter into a letter of intent, memorandum of understanding or qualifyother contract with any Person, amend or modify in any manner adverse to other than Parent, the Company Board Recommendation (it being understood that any failure Holdings and Merger Sub, for, constituting or otherwise relating to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Alternative Proposal, or (vy) fail provide or cause to enforce, be provided any information or grant any waiver or release under, any standstill or similar agreement with respect data relating to any class of equity securities of the Company or any Subsidiary of its Subsidiariesthe Company relating to, or in response to, any Company Alternative Proposal by any Person. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any officer, director (other than a director of the Company who is also an officer or director of Parent) or financial advisor of the Company takes any action (other than any action caused by or at the direction of Parent, Holdings, their Affiliates or their Representatives) that if taken by the Company would be a breach of this Section 5.2, the taking of such action by such officer, director or financial advisor shall be deemed to constitute a breach of this Section 5.2 by the Company.
Appears in 1 contract
No Solicitation by the Company. (a) From Except as set forth in Sections 7.11(b) through (d) hereof, the Company agrees that, following the date of this Agreement until and prior to the earlier of the Effective Time and or the termination of date on which this Agreement in accordance with is terminated pusuant to Section 9.1, neither it nor any Company Subsidiary shall, and that it shall use reasonable best efforts to cause its terms, except as otherwise set forth in this Section 6.03, and each of the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ Subsidiary's officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), agents not to, directly or indirectly, (i) knowingly solicit, initiate or take encourage any action inquiry or proposal that constitutes or could reasonably be expected to knowingly facilitate or knowingly encourage the submission of any lead to a Company Acquisition Proposal, (ii) enter into provide any non-public information or participate data to any Person relating to or in connection with a Company Acquisition Proposal, engage in any discussions or negotiations with, furnish any information relating to the concerning a Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withAcquisition Proposal, or otherwise knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected attempt to know, is seeking to make, make or has made, implement a Company Acquisition Proposal, (iii) (A) fail approve, recommend, agree to makeor accept, or withdraw or qualifypropose publicly to approve, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt agree to or approve or publicly propose to recommendaccept, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (viv) fail approve, recommend, agree to enforceor accept, or grant any waiver propose to approve, recommend, agree to or release underaccept, or execute or enter into, any standstill letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Company Acquisition Proposal. Without limiting the foregoing, any violation of the restrictions set forth in the preceding sentence by any of the Company Subsidiaries or any of the Company's or the Company Subsidiaries' officers, directors, employees, agents or representatives (including any investment banker, attorney or accountant retained by the Company or the Company Subsidiaries) shall be a breach of this Section 7.11(a) by the Company. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any class of equity securities of Company Acquisition Proposal (except with respect to the Company or any of its Subsidiariestransactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fairpoint Communications Inc)
No Solicitation by the Company. (ai) From the date of this Agreement until the earlier of the Effective Time and or the date of termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03pursuant to Section Table of Contents 6.1 or 6.2(a), the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative of, the Company or any of its Subsidiaries to, (A) solicit, initiate or knowingly encourage, or take any other action designed to, or that could reasonably be expected to facilitate, any inquiries or offers with respect to, or that reasonably may be expected to lead to, the submission of any Company Takeover Proposal, (B) enter into any agreement with respect to any Company Takeover Proposal or (C) provide any non-public information regarding the Company and its Subsidiaries to any third party or engage in any negotiations or substantive discussions in connection with any Company Takeover Proposal; provided, however, that prior to receipt of the Company Shareholder Approval, the Company may, in response to a Company Takeover Proposal that was not solicited by the Company and did not otherwise result from a breach of this Section 4.3(b), subject to the execution by the Person making the Company Takeover Proposal of a confidentiality agreement no less favorable to the Company than the Confidentiality Agreement executed by Parent, provide any non-public information regarding the Company and its Subsidiaries to any third party or engage in any negotiations or substantive discussions with such Person regarding any Company Takeover Proposal, in each case only if the Company’s Board of Directors determines in good faith, after consultation with counsel and its financial advisors, that such actions could reasonably be expected to result in a Company Superior Proposal. The Company shall, and shall cause each of its Subsidiaries to, immediately cease and cause to be terminated any existing activities, discussions or negotiations by the Company, any of its Subsidiaries or any officer, director or employee of or investment banker, attorney, accountant or other advisor or representative of, the Company or any of its Subsidiaries, with any Persons conducted heretofore with respect to any of the foregoing and, subject to the terms of any applicable confidentiality agreements between such Persons and the Company or any of its Subsidiaries, require any such Persons to return to the Company or destroy any confidential information previously provided to such Persons, and any such Persons shall be denied access to any electronic dataroom or similar access to confidential information relating to the Company or any of its Subsidiaries. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Subsidiaries and its Subsidiaries’ their officers, directors, employees, investment bankers, attorneys, accountantsaccountants or other advisors or representatives may solicit proposals, consultants enter into agreements and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (i) solicit, initiate or take any other action necessary or desirable to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to enable the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records dispose of their interests in each of the Company Excluded Assets, and no inquiry, proposal or offer from any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, Person with respect solely thereto shall constitute a Company Acquisition Takeover Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the The Company shall not, and directly or indirectly, nor shall cause it permit any of its SubsidiariesSubsidiaries to, and nor shall it authorize or permit any of its and its Subsidiaries’ officers, directors, employeesofficers or employees or any investment banker, investment bankersfinancial advisor, attorneysattorney, accountants, consultants and accountant or other agents, advisors and representatives (including, in the case representative retained by it or any of the Company, the Company Special Committee) its Subsidiaries (collectively, the “Representatives”), not ) to, directly or indirectly, (i) solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to knowingly facilitate facilitate, any inquiries or knowingly encourage the submission making of any proposal or offer (including any proposal or offer to its shareholders) that constitutes, or may reasonably be likely to lead to, any Takeover Proposal, or enter into or maintain or continue discussions or negotiate with any Person in furtherance of such inquiries or to obtain a Takeover Proposal, or agree to or endorse any Takeover Proposal, or authorize or permit any of its Representatives to take any such action (other than confidentiality and “standstill” agreements required pursuant to subclause (iv) below). The Company shall promptly (but in no event later than 24 hours) notify Parent if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Takeover Proposal is made, and shall promptly (but in no event later than 24 hours) inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Company immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Takeover Proposal. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. Notwithstanding anything to the contrary in this Section 5.5, the Company's Board of Directors may take the actions described above in this Section 5.5 with respect to a Person who has made a written, bona fide proposal or offer that was not solicited after January 16, 2004 regarding an Acquisition ProposalTransaction if the Company's Board of Directors has (i) determined in good faith, after consultation with its financial and legal advisors that such proposal is, or could reasonably be likely to lead to the delivery of, a Superior Proposal (as defined below), (ii) enter into or participate determined in any discussions or negotiations withgood faith, furnish any information relating after consultation with its outside legal counsel, that, in light of such Superior Proposal, the taking of the actions described in this Section 5.5(a) is required to comply with its fiduciary obligations to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposalunder applicable law, (iii) (Aprovided written notice to the Parent of its intent to take the actions described in this Section 5.5(a) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) at least two Business Days after a Company Acquisition Proposal is made public or prior to taking any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), such action and (iv) take any action obtained from such Person an executed confidentiality agreement and standstill agreement on terms no less favorable to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws the Company than those contained in the Confidentiality Agreement and regulations the letter agreement dated January 16, 2004; provided, however, that none of the State actions described in this Section 5.5(a) may be taken in the event that the Company has taken any actions in breach of Delawarethis Section 5.5(a); provided further, including Section 203 that the Company's Board of Directors may furnish to the Delaware Law, inapplicable Person who has made the Superior Proposal only (i) such information that has been previously provided to any Third Party or any Company Acquisition Proposal, the Parent or (vii) fail to enforcethe extent such information previously provided to the Parent has changed or been updated, such changed or grant updated information, provided that such changed or updated information is provided simultaneously to the Parent, and the Company's board of directors shall keep the Parent promptly and reasonably informed as to the status of any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiariesdiscussions regarding such Superior Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Sanchez Computer Associates Inc)
No Solicitation by the Company. (a) Company Takeover Proposal. From and after the date of this Agreement until Agreement, the earlier Company shall, and shall cause the Company Subsidiaries to, and it shall use its reasonable best efforts to cause any of its and their officers, directors, employees, financial advisors, attorneys, accountants and other advisors, investment bankers, representatives and agents retained by the Company or any of the Effective Time Company Subsidiaries (collectively, "COMPANY REPRESENTATIVES") to, immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any parties conducted heretofore with respect to, or that would reasonably be expected to lead to, any Company Takeover Proposal. From and after the termination date of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Agreement, the Company shall not, and nor shall cause its Subsidiariesit permit any of the Company Subsidiaries to, and it shall use its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case reasonable best efforts to cause any of the Company, the Company Special Committee) (collectively, “Representatives”), Representatives not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission making of any a Company Acquisition Takeover Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Company Takeover Proposal (other than a confidentiality agreement entered into in accordance with the provisions of this Section 4.2(a)) or (iii) other than informing persons of the existence of the provisions contained in this Section 4.2, participate in any discussions or negotiations withregarding, or furnish or disclose to any person (other than a party to this Agreement) any non-public information relating with respect to the Company in connection with any inquiries or the making of any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withproposal that constitutes, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should would reasonably be expected to knowlead to, is seeking any Company Takeover Proposal; provided, however, that, at any time prior to makeobtaining the Company Stockholder Approval, in response to an unsolicited Company Takeover Proposal that the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes or has made, would reasonably be expected to lead to a Company Acquisition Superior Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parentand which Company Takeover Proposal was made after the date hereof and did not otherwise result from a breach of this Section 4.2, the Company Board Recommendation (it being understood that any failure may, subject to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereofcompliance with Section 4.2(a), (Bi) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement furnish information with respect to any class of equity securities of the Company Entities to the person making such Company Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement; provided, however, that all such information is, in substance, provided to Parent contemporaneously as it is provided to such person, and (ii) participate in discussions or any of negotiations with the person making such Company Takeover Proposal (and its Subsidiariesrepresentatives) regarding such Company Takeover Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (May Department Stores Co)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except Except as otherwise set forth expressly permitted in this Section 6.03Section 5.5, the Company shall not, and shall cause its Subsidiaries, Subsidiaries and its and its Subsidiaries’ their respective officers, directors, employees, investment bankers, attorneys, accountants, consultants financial advisors, affiliates, agents and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee“Agents”) (collectively, “Representatives”), not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or knowingly facilitate (including by way of furnishing non-public information), or take any other action designed to knowingly facilitate lead to, any inquiries or knowingly encourage the making or submission of any proposal that constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (ii) enter into participate or participate engage in any discussions or negotiations with, or furnish any non-public information relating to the or data to, any Person that has made a Company Acquisition Proposal or any of its Subsidiaries inquiry or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party proposal that the Company knows, or should would reasonably be expected to know, is seeking lead to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after accept a Company Acquisition Proposal is made public or enter into any request by Parent to do so will be treated as a withdrawal of the agreement (other than an Acceptable Company Board Recommendation for purposes hereofConfidentiality Agreement in circumstances contemplated in this Section 5.5), (B) fail including any letter of intent or agreement in principle, providing for or relating to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any a Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”)Proposal, (iv) take amend or grant any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” waiver, release or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposalmodification under, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (v) resolve to do any of the foregoing. Without limiting the foregoing, it is agreed that any action taken by any of the Company’s Subsidiaries or by any Agents of the Company or any of its Subsidiaries that, if taken by the Company, would constitute a breach of this Section 5.5 shall constitute a breach of this Section 5.5 by the Company, regardless of (x) whether such Agent is authorized to take such action, (y) whether such Agent is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, and (z) any contrary instruction given to such Agent by the Company or any of its other Agents pursuant to this Section 5.5 or otherwise. Notwithstanding anything to the contrary in this Agreement, the Company and the Company Board, as applicable, may take any actions described in clause (ii) of this Section 5.5(a) with respect to a third-party if at any time prior to obtaining the Company Requisite Approval (A) the Company receives a written Company Acquisition Proposal from such third-party that the Company Board believes in good faith is bona fide, (B) the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that such proposal constitutes, or would reasonably be expected to lead to, a Company Superior Proposal, and (C) the Company Board determines in good faith, after consultation with its outside counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third-party would be inconsistent with the Company Board’s fiduciary duties under applicable Legal Requirements, provided that (1) such Company Acquisition Proposal was received after the date of this Agreement, such Company Acquisition Proposal was not solicited in, or otherwise was not the result of a, violation of this Section 5.5 and such Company Acquisition Proposal has not been withdrawn, (2) the Company provides to Parent the notice required by Section 5.5(e) with respect to such Company Acquisition Proposal and (3) the Company shall not deliver any information to such third-party without entering into a customary confidentiality agreement with such third-party containing limitations on the use and disclosure of non-public information furnished to such third-party that are substantially similar to, and are no less favorable to the Company in the aggregate than, the terms of the Confidentiality Agreement; provided that such confidentiality agreement does not contain provisions that would prohibit the Company from providing any information to Parent in accordance with this Section 5.5 or otherwise prohibits the Company from complying with the provisions of this Section 5.5 (an “Acceptable Company Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Frank's International N.V.)
No Solicitation by the Company. (a) From the date of Except as expressly permitted by this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Section 7.3, the Company shall notshall, and shall cause each of its Subsidiaries, Affiliates and its and its Subsidiaries’ their respective officers, directors, employees, agents, financial advisors, investment bankers, tax advisors, attorneys, accountantsconsultants, consultants accountants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”)): (i) to immediately cease and cause to be terminated any and all solicitation, encouragement, discussions or negotiations with any persons or group of persons (other than Parent and its Affiliates) that may be ongoing with respect to a Company Takeover Proposal and (ii) not to, directly or indirectly, (iA) solicit, initiate initiate, knowingly encourage or take any action to knowingly facilitate any inquiries or knowingly encourage discussions regarding, or the submission making of any proposal or offer that constitutes or could reasonably be expected to lead to, a Company Acquisition Takeover Proposal, (iiB) enter into engage in, continue or otherwise participate in any discussions or negotiations withregarding, or furnish any information relating to the Company or any of its Subsidiaries in connection with, or afford access to the assets, business, properties, assets, books or records of the Company or any of its Subsidiaries toSubsidiaries, otherwise cooperate in to any way withother person for the purpose of soliciting, initiating, knowingly encouraging or knowingly assistfacilitating, participate ina Company Takeover Proposal (other than (x) solely in response to an unsolicited inquiry, facilitate or knowingly encourage any effort by, any Third Party to inform the inquiring person that the Company knowsis bound by the non-solicitation provisions set forth in this Section 7.3 and to limit its communication exclusively to such response, or should reasonably (y) upon receipt of a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a breach of this Section 7.3, solely to the extent necessary to ascertain facts or clarify terms with respect to a Company Takeover Proposal for the Company Board of Directors to be expected able to know, is seeking have sufficient information to makemake the determination described in Section 7.3(c)), or has made(C) approve, adopt, recommend or enter into, or propose to approve, adopt, recommend or enter into, any letter of intent, term sheet or similar document, Contract or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Acquisition Takeover Proposal. The Company shall not, (iii) (A) fail to makeand shall cause its Affiliates not to, release any third party from, or withdraw or qualifywaive, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposalprovision of, or (v) grant permission under, or fail to enforce, or grant any waiver or release under, any standstill or similar agreement confidentiality obligations with respect to a Company Takeover Proposal or similar matter or any class of equity securities of standstill provision in any agreement to which the Company or any of its SubsidiariesAffiliates is a party, in each case, unless the Company Board of Directors determines in good faith, after consultation with its independent financial advisor and outside legal counsel, that the failure to do so would violate its fiduciary duties under applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Inventure Foods, Inc.)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and or the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03pursuant to Section 9.01, the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, agrees that neither the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or nor any of its Subsidiaries or afford access to nor any of the business, properties, assets, books or records directors and officers of the Company or any of its Subsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly, initiate, solicit, encourage or otherwise cooperate in facilitate (including by way of furnishing information or assistance) any way with, Acquisition Proposal or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party inquiries that the Company knows, or should may reasonably be expected to know, is seeking lead to make, or has made, a Company an Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, . The Company further agrees that neither the Company Board Recommendation (it being understood that nor any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (its Subsidiaries nor any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws directors and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities officers of the Company or any of its SubsidiariesSubsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly, engage in any discussion with or provide any confidential information or data to any Person that may reasonably be expected to AGREEMENT AND PLAN OF MERGER -34- lead to an Acquisition Proposal or engage in any negotiations concerning, or otherwise facilitate any effort or attempt to make or implement, an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company shall be permitted (A), to the extent applicable, to comply, with regard to an Acquisition Proposal, with Rule 14e-2(a) promulgated under the Exchange Act, (B) in response to an unsolicited bona fide written Acquisition Proposal from any Person, to recommend such Acquisition Proposal to the Company's stockholders or withdraw or modify in any adverse manner its approval or recommendation of this Agreement, or both, or (C) to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person, if and only to the extent that, in any such case described in clause (B) or (C), (i) the Required Company Vote shall not have been theretofore obtained, (ii) the Board of Directors of the Company shall have concluded in good faith that such Acquisition Proposal (x) in the case of that described in clause (B) above would, if consummated, constitute a Superior Proposal or (y), in the case described in clause (C) above could reasonably be expected to constitute a Superior Proposal, (iii) the Board of Directors of the Company shall have determined in good faith on the basis of advice of outside legal counsel that such action is necessary for such Board of Directors to act in a manner consistent with its fiduciary duties under applicable Law and (iv) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors shall have received from such Person an executed confidentiality agreement containing customary terms and provisions. The Company shall promptly notify the Parent of such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Nothing in this Section 6.03 shall permit the Parent or the Company to terminate this Agreement (except as specifically provided in Article IX).
Appears in 1 contract
No Solicitation by the Company. (a) From the date of Except as expressly permitted by this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its termsSection 5.3 (including Section 5.3(b)), except as otherwise set forth in this Section 6.03, (x) the Company shall notshall, and shall cause its SubsidiariesSubsidiaries to, and its shall use commercially reasonable efforts to cause the Company’s and its Subsidiaries’ respective directors, officers, directors, employees, investment bankers, financial advisors, attorneys, accountants, consultants agents and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not ) to, directly or indirectly, (i) solicitimmediately cease and cause to be terminated any discussions or negotiations with any Person (other than Parent, initiate or take any action Merger Sub and their respective Representatives) that may be ongoing with respect to knowingly facilitate or knowingly encourage the submission of any Company Acquisition an Alternative Proposal, (ii) enter into promptly demand that any Person (or participate its Representatives) in possession of confidential information about the Company or its Subsidiaries that was previously provided to such Persons by or on behalf of the Company or its Subsidiaries in connection with an Alternative Proposal return or destroy all such information, (iii) immediately prohibit any discussions access by any Person (other than Parent, Merger Sub and their respective Representatives) to any physical or negotiations with, furnish any information relating to electronic data room maintained by the Company or any of its Subsidiaries or afford access their respective Representatives relating to the businessa possible Alternative Proposal and (iv) not (A) solicit, propertiesinitiate, assetsknowingly facilitate, books or records knowingly encourage (including by way of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, furnishing confidential information) or knowingly assist, participate in, facilitate induce or knowingly encourage take any effort by, other action designed to lead to any Third Party inquiries or proposals that constitute the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition submission of an Alternative Proposal, (iiiB) except for an Acceptable Confidentiality Agreement, enter into any confidentiality agreement, merger agreement, letter of intent, agreement in principle, stock purchase agreement, asset purchase agreement or stock exchange agreement, option agreement or other similar agreement relating to an Alternative Proposal (A) fail to makean “Acquisition Agreement”), or withdraw (C) withdraw, modify or qualify, amend or propose publicly to withdraw, modify or qualify, in any a manner adverse to Parent, the Company Board Recommendation (it being understood that or publicly recommend the approval or adoption of, or publicly approve or adopt, or propose to publicly recommend, approve or adopt, any failure to publicly, and without qualification (x) recommend against any Company Acquisition Alternative Proposal and (y) reaffirm within five (5) business days of receipt of a written request of Parent following receipt by the Company of an Alternative Proposal, the Company shall publicly reconfirm the Company Board Recommendation, in provided that, Parent shall not be permitted to make such request on more than one (1) occasion with respect to a particular Alternative Proposal and one (1) additional occasion with respect to such Alternative Proposal each case, within ten (10) Business Days after time that a Company Acquisition Proposal material amendment is made to such Alternative Proposal, and the Company may not unreasonably withhold, delay (beyond the five (5) business day period) or condition the public or any request by Parent to do so will be treated as a withdrawal reconfirmation of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation taking of any action described in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a x)(iv)(C) or the failure to take the action described in clause (y) being referred to as an “Company Adverse Recommendation Change”). Without limiting the foregoing, (iv) take it is understood that any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations violation of the State foregoing restrictions in this Section 5.3(a) by the Company’s Subsidiaries or Representatives shall be deemed to be a breach of Delaware, including this Section 203 of 5.3 by the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its SubsidiariesCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lufkin Industries Inc)
No Solicitation by the Company. (a) From Subject to Section 5.2(b), the Company agrees that from and after the date of this Agreement until Agreement, it shall (i) immediately cease and terminate, and cause to be ceased and terminated, all of its, its Subsidiaries’ and their respective Representatives’ discussions and negotiations with any other Person (other than Parent or its Affiliates) regarding any Company Alternative Proposal, and (ii) promptly request that each Person that has entered into a confidentiality agreement in connection with its consideration of a possible Company Alternative Proposal within the earlier last six months return to the Company or destroy all confidential information heretofore furnished to such Person by or on behalf of the Effective Time Company and its Subsidiaries. From and after the termination date of this Agreement in accordance with its termsAgreement, except as otherwise set forth in this subject to Section 6.035.2(b) and Section 7.3(b), the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to nor shall the Company authorize or permit any of its Subsidiaries or afford access to the business, properties, assets, books or records Subsidiary of the Company or any of its Subsidiaries or their respective directors, officers, members, employees, representatives, agents, attorneys, consultants, contractors, accountants, financial advisors and other advisors (a “Representative”) to, otherwise cooperate in any way with(w) solicit, or knowingly assist, participate in, facilitate initiate or knowingly encourage any effort byor knowingly facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any Third Party that the Company knowsinquiry, proposal or offer, or should the making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its unitholders) which constitutes or would be reasonably be expected to know, is seeking lead to make, or has made, a Company Acquisition Alternative Proposal, (iiix) (Aexcept for confidentiality agreements entered into pursuant to the proviso to the first sentence of Section 5.2(b) fail or a definitive agreement entered into or to makebe entered into concurrently with a termination of this Agreement by the Company pursuant to Section 7.3(b), approve or withdraw enter into a letter of intent, memorandum of understanding or qualifyother contract with any Person, amend or modify in any manner adverse to other than Parent, the Company Board Recommendation (it being understood that any failure Holdings and Merger Sub, for, constituting or otherwise relating to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Alternative Proposal, or (vy) fail provide or cause to enforce, be provided any information or grant any waiver or release under, any standstill or similar agreement with respect data relating to any class of equity securities of the Company or any Subsidiary of its Subsidiariesthe Company relating to, or in response to, any Company Alternative Proposal by any Person. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any officer, director (other than a director of the Company who is also an officer or director of Parent) or financial advisor of the Company takes any action (other than any action caused by or at the direction of Parent, Holdings, their Affiliates or their Representatives) that if taken by the Company would be a breach of this Section 5.2, the taking of such action by such officer, director or financial advisor shall be deemed to constitute a breach of this Section 5.2 by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Transocean Partners LLC)
No Solicitation by the Company. (a) From the date of Except as expressly permitted by this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Section 6.1, the Company shall notshall, and shall cause each of its Subsidiaries, and shall use its reasonable best efforts to cause its and its Subsidiaries’ officersRepresentatives: (i) to immediately cease and cause to be terminated any solicitation, directorsknowing encouragement, employees, investment bankers, attorneys, accountants, consultants discussions or negotiations with any Persons (other than Parent and other agents, advisors its Subsidiaries (including US Holdco) and representatives their respective Representatives) that may be ongoing with respect to an Acquisition Proposal and (including, in the case of the Company, the Company Special Committeeii) (collectively, “Representatives”), not to, directly or indirectly, (iA) solicit, initiate initiate, knowingly encourage or take any action to knowingly facilitate any inquiries regarding, or knowingly encourage the submission making of any Company proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iiB) enter into engage in, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any other person any information relating in connection with or for the purpose of soliciting, initiating, knowingly encouraging or knowingly facilitating, an Acquisition Proposal (other than (x) solely in response to an unsolicited inquiry, to refer the inquiring person to the Company terms of this Section 6.1 and to limit its communication exclusively to such referral or (y) upon receipt of a bona fide, unsolicited written Acquisition Proposal from any person that did not result from a material breach of its Subsidiaries or afford access this Section 6.1, solely to the business, properties, assets, books extent necessary to ascertain facts or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected clarify terms with respect to know, is seeking to make, or has made, a Company an Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, Proposal for the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm be able to have sufficient information to make the Company Board Recommendation, determination described in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereofSection 6.1(c)), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommendapprove, adopt adopt, publicly recommend or approve enter into, or publicly propose to recommendapprove, adopt adopt, recommend or approve enter into, any Company letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal (any of the foregoing other than an Acceptable Confidentiality Agreement entered into in this clause (iiiaccordance with Section 6.1(c), a “Company Adverse Recommendation Change”), (ivD) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “fair price,business combination” “supermajority,” “affiliate transactions” or “business combination statute or regulation” (including Section 203 of the DGCL) or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, statute or regulation inapplicable to any Third Party Person (other than Parent and its Affiliates) or to any Company transactions constituting or contemplated by an Acquisition Proposal, (E) otherwise cooperate with or assist or participate in any such inquiries, proposals, offers, discussions or negotiations or (vF) resolve or agree to do any of the foregoing. The Company shall not, and shall cause its Subsidiaries not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or knowingly fail to enforce, or grant any waiver or release under, any standstill or similar agreement confidentiality obligations with respect to an Acquisition Proposal or similar matter or any class of equity securities of standstill provision in any agreement to which the Company or any of its SubsidiariesSubsidiaries is a party; provided, that, prior to the time the Company Stockholder Approval is obtained, but not after, the Company may waive any standstill or similar provisions to the extent (but only to the extent) necessary to permit a person or group to make, on a confidential basis to the Company Board, an Acquisition Proposal, conditioned upon such person agreeing to disclosure of such Acquisition Proposal to Parent, in each case as contemplated by Section 6.1(c) (provided, further, that the Company may only take such action if the Company Board determines in good faith (after consultation with its outside financial advisor and outside legal counsel) that the failure of the Company Board to take such action would reasonably be expected to be inconsistent with its fiduciary duties under Applicable Law). None of the Company or its Subsidiaries shall enter into any confidentiality agreement or other agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from (x) providing to Parent or any of its Affiliates or Representatives the information required to be provided pursuant to this Section 6.1 or (y) otherwise complying with this Section 6.1.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the The Company shall not, shall not authorize or permit any of its controlled affiliates or any of its or their officers, directors or employees to, and shall use its reasonable best efforts to cause any investment banker, financial advisor, attorney, accountant or other representative (a “Representative”) retained by it or any of its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), controlled affiliates not to, directly or indirectlyindirectly through another person, (i) solicit, initiate or knowingly encourage (including by way of furnishing information), or knowingly take any other action designed to knowingly facilitate facilitate, any inquiries regarding, or knowingly encourage the submission making of, any proposal the consummation of any which would constitute a Company Acquisition Proposal, Alternative Transaction or (ii) enter into or participate in any discussions or negotiations withnegotiations, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withwith any person (or group of persons), with respect to any inquiries regarding, or knowingly assist, participate in, facilitate or knowingly encourage any effort bythe making of, any Third Party proposal the consummation of which would constitute a Company Alternative Transaction, except to notify such person (or group of persons) as to the existence of the provisions of this Section 5.2; provided, however, that if, at any time prior to obtaining the Company knowsStockholder Approval, the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that any such proposal that did not result from a material breach of this Section 5.2(a) constitutes or should could reasonably be expected to know, is seeking to make, or has made, result in a Company Acquisition Superior Proposal, (iii) subject to compliance with Section 5.2(c), the Company and its Representatives may (A) fail furnish information with respect to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation and its subsidiaries to the person (or group of persons) making such proposal (and its Representatives and financing sources) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person) pursuant to a customary confidentiality agreement containing terms as to confidentiality (it being understood that such confidentiality agreement need not include any failure to publicly“standstill” terms) generally no less restrictive than the terms of the confidentiality agreement, dated December 24, 2015, as amended, entered into between the Company and Parent (the “Confidentiality Agreement”), and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include participate in discussions or negotiations regarding such proposal with the Company Board Recommendation in the Joint Proxy Statement/Prospectus person (or group of persons) making such proposal (C) recommendand its Representatives and financing sources). For purposes of this Agreement, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.
Appears in 1 contract
No Solicitation by the Company. (a) From Subject to the other provisions of this Section 6.3, from and after the date of this Agreement hereof until the earlier of the Effective Time and or, if earlier, the valid termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, pursuant to Article 8 the Company shall not, and shall cause its Subsidiaries, the Company Subsidiaries and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives their Representatives (including, in the case on behalf of the Company, Company or the Company Special CommitteeSubsidiaries, as applicable) (collectively, “Representatives”), not to, directly or indirectly, (i) directly or indirectly initiate, solicit, initiate or take any action to knowingly facilitate (including by providing access to its properties, books and records or knowingly encourage data or any non-public information concerning the submission Company or any Company Subsidiary to any Third Party or group for the purpose of facilitating any inquiries, proposals or offers relating to any Company Acquisition Proposal) or knowingly encourage any inquiries, (ii) proposal or offer that constitutes or could reasonably be expected to lead to a Company Acquisition Proposal or the consummation thereof or enter into into, continue or otherwise participate or engage in any discussions or negotiations withwith respect thereto, furnish any information relating to the Company (ii) approve, endorse or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withrecommend, or knowingly assistpublicly propose to approve, participate in, facilitate endorse or knowingly encourage any effort byrecommend, any Third Party proposal that the Company knows, constitutes or should could reasonably be expected to know, is seeking lead to make, or has made, a any Company Acquisition Proposal, (iii) effectuate a Company Change of Board Recommendation, (iv) enter into any merger agreement, acquisition agreement, letter of intent or other similar agreement or arrangement relating to any Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 6.3(b)), (v) take any action to exempt any Person from, or make any acquisition of securities of the Company by any Person not subject to, any state takeover statute or similar statute or regulation or any similar anti-takeover provision in the Company Charter or the Company Bylaws, that applies to the Company or (vi) authorize any of, or commit, resolve or agree to do any of the foregoing. Subject to the other provisions of this Section 6.3, the Company shall, and shall cause the Company Subsidiaries and the Company’s Representatives (on behalf of the Company or the Company Subsidiaries) to, (A) fail to makepromptly (and, or withdraw or qualify, amend or modify in any manner adverse event, within twenty-four (24) hours after the execution of this Agreement) cease any discussion or negotiation with any Persons (other than Parent and its Affiliates and Representatives on its behalf) prior to Parentthe date hereof by the Company, the Company Board Recommendation Subsidiaries or any of the Company’s Representatives with respect to any Company Acquisition Proposal, (it being understood B) promptly (and, in any event, within twenty-four (24) hours after the execution of this Agreement) terminate access by any Third Party to any physical or electronic data room relating to any Company Acquisition Proposal or any inquiry, proposal or offer that any failure constitutes or could reasonably be expected to publicly, and without qualification (x) recommend against any lead to a Company Acquisition Proposal and (yC) reaffirm the Company Board Recommendation, promptly (and in each case, any event within ten (10) two Business Days after the execution of this Agreement) request the prompt return or destruction of any confidential information provided to any Third Party. Notwithstanding anything to the contrary contained in this Section 6.3(a), the Company and the Company’s Representatives may (A) contact any Person that has made after the date of this Agreement a bona fide, unsolicited Company Acquisition Proposal solely in order to seek to clarify and understand the terms and conditions thereof (which contact, for the avoidance of doubt, shall not include any negotiation of such terms or conditions) in order to determine whether such inquiry, proposal or offer constitutes or would reasonably be expected to lead to a Superior Company Proposal and (B) inform a Third Party that has made or is considering making a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any provisions of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries6.3.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of Except as expressly permitted by this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Section 6.3, the Company shall notshall, and shall cause each of its SubsidiariesSubsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ officersRepresentatives: (i) to immediately cease and cause to be terminated any solicitation, directorsencouragement, employees, investment bankers, attorneys, accountants, consultants discussions or negotiations with any persons (other than Parent and other agents, advisors its Subsidiaries (including Acquiror) and representatives their respective Representatives) that may be ongoing with respect to a Company Takeover Proposal and (including, in the case of the Company, the Company Special Committeeii) (collectively, “Representatives”), not to, directly or indirectly, (iA) solicit, initiate initiate, knowingly encourage or take any action to knowingly facilitate any inquiries regarding, or knowingly encourage the submission making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Acquisition Takeover Proposal, (iiB) enter into engage in, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any other person any information relating to in connection with or for the Company or any purpose of its Subsidiaries or afford access to the businesssoliciting, propertiesinitiating, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, knowingly encouraging or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has madefacilitating, a Company Acquisition ProposalTakeover Proposal (other than (x) solely in response to an unsolicited inquiry, to refer the inquiring person to the terms of this Section 6.3 and to limit its communication exclusively to such referral or (iiiy) (A) fail upon receipt of a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from a breach of this Section 6.3, solely to make, the extent necessary to ascertain facts or withdraw or qualify, amend or modify in any manner adverse clarify terms with respect to Parent, a Company Takeover Proposal for the Company Board Recommendation (it being understood that any failure of Directors to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm be able to have sufficient information to make the Company Board Recommendation, determination described in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereofSection 6.3(c)), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommendapprove, adopt adopt, publicly recommend or approve enter into, or publicly propose to recommendapprove, adopt adopt, recommend or approve enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Acquisition Takeover Proposal (any of the foregoing other than an Acceptable Confidentiality Agreement entered into in this clause (iiiaccordance with Section 6.3(c), a “Company Adverse Recommendation Change”), (ivD) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulationcombination” or other similar anti-takeover laws and regulations of the State of Delawarestatute or regulation (including any transaction under, including or a third party becoming an “interested stockholder” under, Section 203 of the Delaware Law, DGCL) inapplicable to any Third Party person (other than Acquiror and its Affiliates) or to any transactions constituting or contemplated by a Company Acquisition Takeover Proposal, (E) otherwise cooperate with or assist or participate in any such inquiries, proposals, offers, discussions or negotiations or (vF) resolve or agree to do any of the foregoing. The Company shall not, and shall cause its Subsidiaries not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or knowingly fail to enforce, or grant any waiver or release under, any standstill or similar agreement confidentiality obligations with respect to a Company Takeover Proposal or similar matter or any class of equity securities of standstill provision in any agreement to which the Company or any of its SubsidiariesSubsidiaries is a party; provided that, prior to the time the Company Stockholder Approval is obtained, but not after, the Company may waive any standstill or similar provisions to the extent necessary to permit a person or group to make, on a confidential basis to the Company Board of Directors, a Company Takeover Proposal, conditioned upon such person agreeing to disclosure of such Company Takeover Proposal to Acquiror, in each case as contemplated by this Section 6.3 (provided, further, that the Company may only take such action if the Company Board of Directors determines in good faith (after consultation with its outside financial advisor and outside legal counsel) that the failure of the Company Board of Directors to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law). None of the Company or its Subsidiaries shall enter into any confidentiality agreement or other agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from (x) providing to Acquiror or any of its Affiliates or Representatives the information required to be provided pursuant to this Section 6.3 or (y) otherwise complying with this Section 6.3. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect.
Appears in 1 contract
No Solicitation by the Company. (a) From Except as expressly permitted by this Section 6.6, from and after the date of this Agreement hereof until the earlier of the Effective Time and or the termination of date, if any, on which this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03is terminated pursuant to Section 8.1, the Company agrees that it shall not, and shall cause its the Company Subsidiaries, and its and their respective officers and directors not to, and shall use its reasonable best efforts to cause its and the Company Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not toRepresentatives to not, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate initiate, or knowingly encourage or knowingly facilitate (including by way of providing information) any inquiry with respect to, or the making, submission of or announcement of, an Acquisition Proposal or any Company inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal, ; (ii) enter into or participate in any discussions negotiations regarding, or negotiations with, furnish to any person any information relating to the Company or any of its Subsidiaries or afford access to the businessCompany Subsidiary in connection with, properties, assets, books or records of the Company an Acquisition Proposal or any of its Subsidiaries toinquiry, otherwise cooperate in any way withproposal, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party offer that the Company knows, or should would reasonably be expected to know, is seeking lead to make, or has made, a Company an Acquisition Proposal, ; (iii) (A) fail to makeadopt, approve, endorse, or withdraw recommend, or publicly propose to adopt, approve, endorse, or recommend, any Acquisition Proposal; (iv) make any public statement inconsistent with or withdraw, change, amend, mxxxxx, or qualify, amend or modify otherwise publicly propose to withdraw, change, amend, modify, or qualify, in any each case, in a manner adverse to Parent, the Company Board Recommendation Recommendation; (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (Bv) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus ; (vi) approve, authorize, or (C) recommend, adopt cause or approve permit the Company or publicly propose to recommend, adopt or approve any Company Subsidiary to enter into, any merger agreement, acquisition agreement, reorganization agreement, letter of intent, memorandum of understanding, agreement in principle or similar definitive agreement with respect to, or any other definitive agreement or commitment providing for, any Acquisition Proposal (any other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.6) (a “Company Acquisition Agreement”); or (vii) call or convene a meeting of the foregoing Company Shareholders to consider a proposal that would reasonably be expected to materially impair, prevent, or delay the consummation of the Transactions (any act described in this clause clauses (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal), or (v) fail to enforcethat is taken, or grant any waiver or release underauthorized, any standstill or similar agreement or, solely with respect to any class of equity securities of clause (v), permitted by the Company or any Board of its Subsidiaries.Directors, a “
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wireless Telecom Group Inc)
No Solicitation by the Company. (a) From the date of this Agreement until Until the earlier of the Effective Time and or the date of termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03pursuant to the provisions of Section 8.1 hereof, the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ will not (nor will the Company permit any of the Company's officers, directors, employees, investment bankersstockholders, attorneys, accountantsinvestment advisors, consultants and other agents, advisors and representatives (includingrepresentatives, in the case of the Company, the Company Special CommitteeAffiliates or Associates to) (collectively, “Representatives”), not to, directly or indirectly, take any of the following actions with any Person other than Parent and its designees: (ia) solicit, initiate initiate, entertain, review, or take encourage any action to knowingly facilitate proposals or knowingly encourage the submission of any Company Acquisition Proposaloffers from, (ii) enter into or participate conduct discussions with or engage in any discussions or negotiations with, furnish any information Person relating to an investment in or any possible Business Combination with the Company or any of its Subsidiaries (whether such Subsidiaries are in existence on the date hereof or afford access are hereafter organized), (b) provide information with respect to the businessCompany to any Person, propertiesother than Parent, assetsrelating to, books or records of otherwise cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible investment in or any Business Combination with the Company or any Subsidiaries (whether such Subsidiaries are in existence on the date hereof or are hereafter organized), (c) enter into any contract, arrangement or understanding with any Person, other than Parent, looking toward an investment in or any Business Combination with the Company or any of its Subsidiaries to, otherwise cooperate (whether such Subsidiaries are in any way with, existence on the date hereof or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereofare hereafter organized), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (vd) fail to enforcemake or authorize any statement, recommendation or grant solicitation in support of any waiver possible investment in or release under, any standstill or similar agreement with respect to any class of equity securities of Business Combination involving the Company or any of its SubsidiariesSubsidiaries (whether such Subsidiaries are in existence on the date hereof or are hereafter organized) other than the Business Combination with Parent contemplated by this Agreement. The Company shall immediately cease and cause to be terminated any such contacts or negotiations with any Person relating to any such transaction or Business Combination. In addition to the foregoing, if the Company receives prior to the Effective Time or the termination of this Agreement any offer or proposal (formal or informal) relating to any of the above, the Company shall immediately notify Parent thereof and provide Parent with the details thereof including the identity of the Person or Persons making such offer or proposal, and copies of any written communication relating thereto and will keep Parent fully informed of the status and details of any such offer of proposal. Each of the Company and Parent acknowledge that this Section 4.2 was a significant inducement for Parent to enter into this Agreement and the absence of such provision would have resulted in either (i) a material reduction in the merger consideration to be paid to the stockholders of the Company or (ii) a failure to induce Parent to enter into this Agreement.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its termsSection 7.1, except as otherwise set forth provided in Section 5.5(b) or Section 5.5(d), (i) the Company shall, and shall cause its Subsidiaries and its and their respective officers and directors to, immediately cease, and shall direct and use its reasonable best efforts to cause its and their respective other Representatives to immediately cease, and cause to be terminated all existing discussions, negotiations and communications with any Persons or entities with respect to any Company Acquisition Proposal (other than the transactions contemplated by this Section 6.03, Agreement); (ii) the Company shall not, and shall cause not authorize or permit any of its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not Representatives to, directly or indirectlyindirectly through another Person, (iA) initiate, seek, solicit, initiate or take any action to knowingly facilitate or facilitate, knowingly encourage the submission (including by way of furnishing any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withSubsidiaries), or knowingly assistinduce the making, participate in, facilitate submission or knowingly encourage announcement of any effort by, any Third Party proposal that the Company knowsconstitutes, or should would reasonably be expected to know, is seeking to make, or has madelead to, a Company Acquisition Proposal, (iiiB) (A) fail to makeengage in negotiations or discussions with, or withdraw provide any non-public information or qualifynon-public data to, amend or modify in any manner adverse afford access to Parentthe properties, books and records of the Company Board Recommendation to, any Person (it being understood that other than Parent or any failure of its Affiliates or Representatives) in connection with or in response to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent proposal reasonably expected to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail lead to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal or grant any waiver or release under any standstill, confidentiality or other agreement (except that if the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to grant any of waiver or release would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, the foregoing Company may waive any such standstill provision in this clause (iii), order to permit a “third party to make a Company Adverse Recommendation Change”Acquisition Proposal), (ivC) take enter into any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” binding or “business combination statute or regulation” non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar anti-takeover laws and regulations of the State of Delawareagreement, including Section 203 of the Delaware Lawcommitment, inapplicable arrangement or understanding contemplating or otherwise in connection with, or that is intended to any Third Party or would reasonably be expected to lead to, any Company Acquisition Proposal, or (vD) fail resolve to enforcedo any of the foregoing; (iii) the Company shall not provide and shall, or grant within twenty-four (24) hours of execution of this Agreement, terminate access of any waiver or release under, any standstill or similar agreement with respect third party to any class data room (virtual or actual) containing any of equity securities the Company’s information; and (iv) within twenty-four (24) hours of execution of this Agreement, the Company shall request the return or destruction of all confidential, non-public information and materials provided to third parties that have, entered into confidentiality agreements relating to a possible Company Acquisition Proposal with the Company or any of its Subsidiaries.. 45
Appears in 1 contract
No Solicitation by the Company. (a) From After the date of this Agreement until the earlier of hereof and prior to the Effective Time and the or earlier termination of this Agreement in accordance with Agreement, neither the Company nor any of its termsSubsidiaries nor any of the officers, except as otherwise set forth in this Section 6.03directors or employees of the Company or its Subsidiaries shall, and the Company shall not, and shall use reasonable best efforts to cause its Subsidiaries, and its and its Subsidiaries’ officers' attorneys, directors, employeesaccountants, investment bankers, attorneysfinancial advisors, accountants, consultants agents and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee"Representatives") (collectively, “Representatives”), not to, directly or indirectly, : (i) solicit, initiate initiate, encourage or take induce any action to knowingly facilitate inquiry with respect to, or knowingly encourage the making, submission of any or announcement of, a Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations withregarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 5.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. The Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or afford access any of its or their Representatives with respect to such Person's consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the business, properties, assets, books or records of Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiariesor their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Medicis Pharmaceutical Corp)
No Solicitation by the Company. (a) From After the date of this Agreement until the earlier of hereof and prior to the Effective Time and the or earlier termination of this Agreement in accordance with Agreement, neither the Company nor any of its termsSubsidiaries nor any of the officers, except as otherwise set forth in this Section 6.03directors or employees of the Company or its Subsidiaries shall, and the Company shall not, and shall use reasonable best efforts to cause its Subsidiaries, and its and its Subsidiaries’ officersattorneys, directors, employeesaccountants, investment bankers, attorneysfinancial advisors, accountants, consultants agents and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), ) not to, directly or indirectly, : (i) solicit, initiate initiate, encourage or take induce any action to knowingly facilitate inquiry with respect to, or knowingly encourage the making, submission of any or announcement of, a Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations withregarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 5.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. The Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or afford access any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the business, properties, assets, books or records of Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiariesor their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.
Appears in 1 contract
No Solicitation by the Company. (a) From The Company agrees that, following the date of this Agreement until and prior to the earlier of the Effective Time or the Termination Date, neither it nor any Company Subsidiary shall, and that it shall use reasonable best efforts to cause its and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the Company’s and each Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ Subsidiary’s officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), agents not to, directly or indirectly, (i) knowingly solicit, initiate or take encourage any action inquiry or proposal that constitutes or could reasonably be expected to knowingly facilitate or knowingly encourage the submission of any lead to a Company Acquisition Proposal, (ii) enter into provide any non-public information or participate data to any Person relating to or in connection with a Company Acquisition Proposal, engage in any discussions or negotiations with, furnish any information relating to the concerning a 69 Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withAcquisition Proposal, or otherwise knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected attempt to know, is seeking to make, make or has made, implement a Company Acquisition Proposal, (iii) (A) fail approve, recommend, agree to makeor accept, or withdraw or qualifypropose publicly to approve, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt agree to or approve or publicly propose to recommendaccept, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (viv) fail approve, recommend, agree to enforceor accept, or grant any waiver propose to approve, recommend, agree to or release underaccept, or execute or enter into, any standstill letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Company Acquisition Proposal. Without limiting the foregoing, any violation of the restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries or any of the Company’s or the Company Subsidiaries’ officers, directors, employees, agents or representatives (including any investment banker, attorney or accountant retained by the Company or the Company Subsidiaries) shall be a breach of this Section 8.12(a) by the Company. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any class of equity securities of Company Acquisition Proposal (except with respect to the Company or any of its Subsidiariestransactions contemplated by this Agreement).
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time Closing and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the Company shall not, and shall cause its SubsidiariesSubsidiaries and controlled Affiliates, and its and its Subsidiaries’ their respective stockholders, officers, directorsdirectors and employees not to, employees, investment bankers, attorneys, accountants, consultants and shall use reasonable best efforts to cause its and their other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), respective Representatives not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate (including by way of providing non-public information) or knowingly encourage or induce the submission of any Company Acquisition Proposal or any inquiry, indication of interest or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, officers, directors, employees, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should would reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal or any inquiry or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, ; (iii) (A) fail to makeenter into or approve, recommend or withdraw or qualify, amend or modify in any manner adverse to Parent, declare advisable for the Company Board Recommendation (it being understood that or any failure of its Subsidiaries to publiclyexecute or enter into, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendationlegally binding merger agreement, letter of intent, agreement in each caseprinciple, within ten (10) Business Days after acquisition agreement, joint venture agreement, partnership agreement or other similar agreement relating to or constituting a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), Proposal; (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-anti- takeover laws Laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.DGCL,
Appears in 1 contract
No Solicitation by the Company. (ai) From Except as permitted by this Section 4.5(a), during the date Pre-Closing Period, none of the Company or any Representative of the Company shall directly or indirectly (A) initiate, solicit, seek or knowingly encourage or support any inquiries, proposals or offers that constitute or may reasonably be expected to lead to, a Company Acquisition Proposal (as defined below), (B) engage or participate in, or knowingly facilitate, any discussions or negotiations regarding, or furnish any nonpublic information to any Person in connection with, any inquiries, proposals or offers that constitute, or may reasonably be expected to lead to, a Company Acquisition Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Agreement until Section 4.5 and to limit its conversation or other communication exclusively to such referral), or (C) enter into any letter of intent, agreement in principle or other similar type of agreement relating to a Company Acquisition Proposal, or enter into any agreement or agreement in principle requiring Company to abandon, terminate or fail to consummate the transactions contemplated hereby or resolve, propose or agree to do any of the foregoing; provided, however, that prior to the earlier of the Effective Time time that the Company Stockholders adopt and approve this Agreement pursuant to the Company Stockholder Written Consent or the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Section 9, the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, may take the following actions in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (i) solicit, initiate or take any action response to knowingly facilitate or knowingly encourage the submission of any an unsolicited bona fide written Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to Proposal received after the Company or any date hereof that the Board of its Subsidiaries or afford access to the business, properties, assets, books or records Directors of the Company or any of has determined, in good faith, after consultation with its Subsidiaries tooutside counsel and financial advisors, otherwise cooperate in any way withconstitutes, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should would reasonably be expected to know, is seeking to make, or has madelead to, a Company Acquisition Proposal, Superior Offer: (iii1) (A) fail furnish nonpublic information regarding Company to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm third party making the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation ChangeQualified Bidder”) and (2) engage in discussions or negotiations with the Company Qualified Bidder and its representatives with respect to such Company Acquisition Proposal; provided that (w) the Company receives from the Company Qualified Bidder an executed confidentiality agreement the terms of which are not less restrictive to such Person than those contained in the Confidentiality Agreement, and containing additional provisions that expressly permit the Company to comply with the terms of this Section 4.5 (a “Company Acceptable Confidentiality Agreement”) (a copy of such Company Acceptable Confidentiality Agreement shall promptly, and in any event within twenty-four (24) hours, be provided to Saffron for informational purposes only), (ivx) take the Company contemporaneously supplies to Saffron any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” such nonpublic information or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable access to any Third Party such nonpublic information to the extent it has not been previously provided or any made available to Saffron, (y) the Company Acquisition Proposalhas not breached this Section 4.5, or and (vz) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class the Board of equity securities Directors of the Company or any determines in good faith, after consultation with its outside legal counsel and financial advisors, that taking such actions would be required to comply with the fiduciary duties of its Subsidiariesthe Board of Directors of the Company under applicable Laws.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Synta Pharmaceuticals Corp)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and or the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03pursuant to Section 9.01, the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, agrees that neither the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or nor any of its Subsidiaries or afford access to nor any of the business, properties, assets, books or records directors and officers of the Company or any of its Subsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly, initiate, solicit, encourage or otherwise cooperate in facilitate (including by way of furnishing information or assistance) any way with, Acquisition Proposal or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party inquiries that the Company knows, or should may reasonably be expected to know, is seeking lead to make, or has made, a Company an Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, . The Company further agrees that neither the Company Board Recommendation (it being understood that nor any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (its Subsidiaries nor any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws directors and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities officers of the Company or any of its SubsidiariesSubsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly, engage in any discussion with or provide any confidential information or data to any Person that may reasonably be expected to lead to an Acquisition Proposal or engage in any negotiations concerning, or otherwise facilitate any effort or attempt to make or implement, an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company shall be permitted (A), to the extent applicable, to comply, with regard to an Acquisition Proposal, with Rule 14e-2(a) promulgated under the Exchange Act, (B) in response AGREEMENT AND PLAN OF MERGER to an unsolicited bona fide written Acquisition Proposal from any Person, to recommend such Acquisition Proposal to the Company's stockholders or withdraw or modify in any adverse manner its approval or recommendation of this Agreement, or both, or (C) to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person, if and only to the extent that, in any such case described in clause (B) or (C), (i) the Required Company Vote shall not have been theretofore obtained, (ii) the Board of Directors of the Company shall have concluded in good faith that such Acquisition Proposal (x) in the case of that described in clause (B) above would, if consummated, constitute a Superior Proposal or (y), in the case described in clause (C) above could reasonably be expected to constitute a Superior Proposal, (iii) the Board of Directors of the Company shall have determined in good faith on the basis of advice of outside legal counsel that such action is necessary for such Board of Directors to act in a manner consistent with its fiduciary duties under applicable Law and (iv) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors shall have received from such Person an executed confidentiality agreement containing customary terms and provisions. The Company shall promptly notify the Parent of such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Nothing in this Section 6.03 shall permit the Parent or the Company to terminate this Agreement (except as specifically provided in Article IX).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dresser Industries Inc /De/)
No Solicitation by the Company. The Company agrees that (ai) From the date neither it nor any of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the Company shall notSubsidiaries shall, and it shall cause not authorize or permit any of its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and agents or representatives (including, in the case without limitation, any investment banker, attorney or accountant retained by it or any of the Companyits Subsidiaries) to, the Company Special Committee) (collectively, “Representatives”), not and on becoming aware of it will stop such person from continuing to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any action designed to knowingly facilitate facilitate, directly or knowingly encourage indirectly, any inquiry, proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a tender or exchange offer, merger, consolidation, business combination, purchase or similar transaction or series of transactions (other than the submission transactions contemplated by this Agreement) involving, individually or in the aggregate, 15% or more of the assets, net revenues or net income of the Company and its Subsidiaries on a consolidated basis or 15% or more of any class of capital stock of the Company (any such proposal, offer or transaction being hereinafter referred to as a "Company Acquisition Proposal") or cooperate with or assist, (ii) enter into participate or participate engage in any discussions or negotiations withconcerning a Company Acquisition Proposal; and (ii) it will immediately cease and cause to be terminated any existing negotiations with any parties conducted heretofore with respect to any of the foregoing; provided that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal or (B) prior to the Cutoff Date (as defined herein), furnish any providing information relating (pursuant to a confidentiality and standstill agreement in reasonably customary form with terms at least as favorable to the Company as the Confidentiality and Standstill Agreement dated April 24, 2000, between Parent and the Company (the "Confidentiality and Standstill Agreement") and which does not contain terms that prevent the Company from complying with its obligations under this Section 7.2) to or engaging in any of its Subsidiaries negotiations or afford access discussions with any person or entity who has made an unsolicited bona fide written Company Acquisition Proposal with respect to all the business, properties, assets, books or records outstanding capital stock of the Company or any all or substantially all the assets of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knowsthat, or should reasonably be expected to knowin the good faith judgment of the Board of Directors of the Company, is seeking to maketaking into account the likelihood of financing, or has madeand based on the advice of a financial advisor of recognized national reputation, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse written summary of which shall be promptly provided to Parent, is superior to the Merger (a "Company Superior Proposal"), to the extent the Board Recommendation (it being understood of Directors of the Company, after consultation with its outside legal counsel, determines that any the failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will would be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement inconsistent with respect to any class of equity securities of the Company or any of its Subsidiariesfiduciary obligations.
Appears in 1 contract
No Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the Effective Time and or the termination of date, if any, on which this Agreement in accordance with its termsis terminated pursuant to Section 8.01, and except as otherwise set forth provided for in this Section 6.03Agreement, the Company shall not, and shall cause its Subsidiaries, Affiliates not to and shall not authorize or permit its and its Subsidiaries’ their respective directors, officers, directors, employees, investment bankers, financial advisors, attorneys, accountantsaccountants or other advisors, consultants and other agents, advisors and agents or representatives (including, in the case of the Company, the Company Special Committee) (collectively, collectively “Representatives”), not ) to, directly or indirectly, : (i) solicit, initiate or take any action to initiate, knowingly facilitate or knowingly encourage the submission or making of any Company Acquisition Competing Proposal, (ii) enter into or participate in any discussions or negotiations withregarding, or furnish to any person any material nonpublic information relating in furtherance of (excluding, for the avoidance of doubt, information furnished to the Company a current or prospective commercial counterparty (including any of its Subsidiaries customer or afford access to the business, properties, assets, books or records supplier) of the Company or any of its Subsidiaries tofor the sole purpose of furthering an existing or prospective commercial arrangement with such person and, otherwise cooperate in 49 any way withevent, or knowingly assist, participate in, facilitate or knowingly encourage not in contemplation of any effort byCompany Competing Proposal), any Third Party that the Company knows, Competing Proposal or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in enter into any manner adverse to Parent, the agreement regarding a Company Board Recommendation (it being understood that any failure to publiclyCompeting Proposal. The Company shall, and without qualification (x) recommend against shall cause its Affiliates and its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement person conducted heretofore with respect to any class Company Competing Proposal and promptly request the prompt return or destruction of equity securities all confidential information previously furnished, and the Company shall take all reasonably necessary actions to secure its rights and ensure the performance of any such person’s obligations under any applicable confidentiality agreement to return or destroy such information. The Company shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between the Company and any person (other than Parent), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such person to submit a Company Competing Proposal. The Company shall ensure that its Representatives are aware of the Company provisions of this Section 5.03, and any violation of the restrictions contained in this Section 5.03 by its Board of Directors (including any committee thereof) or any its Representatives shall be deemed to be a breach of its Subsidiariesthis Section 5.03 by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the The Company shall not, and nor shall cause it permit any of its Subsidiariessubsidiaries to, and its and its Subsidiaries’ officersor authorize or permit any director, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case officer or employee of the CompanyCompany or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company Special Committee) or any of its subsidiaries (collectively, the “Company Representatives”), not ) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate initiate, induce or knowingly encourage the submission of any Company Acquisition Proposal, Takeover Proposal (as defined below) or (ii) enter into into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any Person any information relating to the Company or any of its Subsidiaries data or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in subsidiaries with respect to any way withCompany Takeover Proposal, or knowingly assist, participate in, otherwise facilitate or knowingly encourage any effort byor attempt to make or implement any Company Takeover Proposal, in each case other than a Company Takeover Proposal made by Parent; provided, however, that, at any Third Party time prior to acceptance of the Company Shares pursuant to the Offer, the Board of Directors may, in response to a Company Takeover Proposal that the Company knowsBoard of Directors determines in good faith, after consultation with its financial advisor, constitutes or should could reasonably be expected to know, is seeking lead to make, or has made, a Company Acquisition Takeover Proposal that is more favorable to the stockholders of the Company (taking into account the Person making the Company Takeover Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parentthe consideration offered, the likelihood and timing of consummation (including the legal, financial and regulatory Table of Contents aspects of the Company Takeover Proposal) as well as any other factors deemed relevant by the Board Recommendation of Directors) than the proposal evidenced by this Agreement (it being understood that any failure to publiclya “Company Competitive Proposal”), and without qualification (x) recommend against any furnish information with respect to the Company Acquisition and its subsidiaries to the Person making this Company Competitive Proposal (and its representatives) pursuant to a customary confidentiality agreement (which confidentiality agreement contains terms that are equivalent to, and in no respect less favorable to the Company than, the terms of the Confidentiality Agreement, dated August 30, 2002, between Parent and the Company (as it may be amended from time to time, the “Confidentiality Agreement”)), and (y) reaffirm participate in discussions or negotiations with the Person making this Company Competitive Proposal (and its representatives) regarding this Company Competitive Proposal, provided that (i) the Board of Directors determines in good faith, after consultation with its outside legal counsel, that the failure to provide such information or engage in such negotiation, would be inconsistent with the Board of Directors’ fiduciary duties under applicable Law and (ii) a copy of all the information provided to such Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent. Promptly after the execution of this Agreement, the Company Board Recommendationwill, in and will cause each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of its subsidiaries and each of the Company Board Recommendation for purposes hereof)Representatives to, (Bi) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus terminate all discussions or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve negotiations with all third parties regarding any Company Acquisition Takeover Proposal and (any ii) request the prompt return or destruction of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action all confidential information relating to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiariessubsidiaries previously furnished to any such third parties.
Appears in 1 contract
No Solicitation by the Company. (a) From After the date of this Agreement until the earlier of hereof and prior to the Effective Time and the or earlier termination of this Agreement in accordance with Agreement, neither the Company nor any of its termsSubsidiaries nor any of the officers, except as otherwise set forth in this Section 6.03directors or employees of the Company or its Subsidiaries shall, and the Company shall not, and shall use reasonable best efforts to cause its Subsidiaries, and its and its Subsidiaries’ officers' attorneys, directors, employeesaccountants, investment bankers, attorneysfinancial advisors, accountants, consultants agents and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee"Representatives") (collectively, “Representatives”), not to, directly or indirectly, : (i) solicit, initiate initiate, encourage or take induce any action to knowingly facilitate inquiry with respect to, or knowingly encourage the making, submission of any or announcement of, a Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations withregarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or afford access any of its or their Representatives with respect to such Person's consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the business, properties, assets, books or records of Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiariesor their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.
Appears in 1 contract
No Solicitation by the Company. (a) From the date The Company agrees that (i) neither it nor any of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the Company shall notSubsidiaries shall, and it shall cause not authorize or permit any of its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and agents or representatives (including, in the case without limitation, any investment banker, attorney or accountant retained by it or any of the Companyits Subsidiaries) to, the Company Special Committee) (collectively, “Representatives”), not and on becoming aware of it will stop such person from continuing to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any action designed to knowingly facilitate facilitate, directly or knowingly encourage indirectly, any inquiry, proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a tender or exchange offer, merger, consolidation, business combination, purchase or similar transaction or series of transactions (other than the submission transactions contemplated by this Agreement) involving, individually or in the aggregate, 15% or more of the assets, net revenues or net income of the Company and its Subsidiaries on a consolidated basis or 15% or more of any class of capital stock of the Company (any such proposal, offer or transaction being hereinafter referred to as a "Company Acquisition Proposal") or cooperate with or assist, (ii) enter into participate or participate engage in any discussions or negotiations withconcerning a Company Acquisition Proposal; and (ii) it will immediately cease and cause to be terminated any existing negotiations with any parties conducted heretofore with respect to any of the foregoing; provided that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal or (B) prior to the Cutoff Date (as defined herein), furnish any providing information relating (pursuant to a confidentiality and standstill agreement in reasonably customary form with terms at least as favorable to the Company as the Confidentiality and Standstill Agreement dated April 24, 2000, between Parent and the Company (the "Confidentiality and Standstill Agreement") and which does not contain terms that prevent the Company from complying with its obligations under this Section 7.2) to or engaging in any of its Subsidiaries negotiations or afford access discussions with any person or entity who has made an unsolicited bona fide written Company Acquisition Proposal with respect to all the business, properties, assets, books or records outstanding capital stock of the Company or any all or substantially all the assets of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knowsthat, or should reasonably be expected to knowin the good faith judgment of the Board of Directors of the Company, is seeking to maketaking into account the likelihood of financing, or has madeand based on the advice of a financial advisor of recognized national reputation, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse written summary of which shall be promptly provided to Parent, is superior to the Merger (a "Company Superior Proposal"), to the extent the Board Recommendation (it being understood of Directors of the Company, after consultation with its outside legal counsel, determines that any the failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will would be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement inconsistent with respect to any class of equity securities of the Company or any of its Subsidiariesfiduciary obligations.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement in accordance with its termsSection 9.1, except as otherwise set forth in this Section 6.03Section 6.2, the Company (including in the case of clauses (iv)-(viii) or clause (ix) (to the extent related to clauses (iv)-(viii)), the Company Board) shall not, and shall cause its Subsidiaries, Subsidiaries and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), respective Representatives not to, directly or indirectly, (i) solicit, initiate or take any action to initiate, participate in, knowingly facilitate facilitate, knowingly assist or knowingly encourage any inquiries regarding, or the making or submission of, any Acquisition Proposal or any inquiry, indication of any Company interest, proposal, offer or request that would reasonably be expected to lead to an Acquisition Proposal, (ii) (A) enter into into, continue or participate in any discussions or negotiations with, furnish in respect of any information relating to the Company Acquisition Proposal or any inquiry, indication of its Subsidiaries interest, proposal, offer or afford access request that would reasonable be expected to the business, properties, assets, books lead to an Acquisition Proposal or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, (B) furnish to any Third Party any information in connection with any Acquisition Proposal or any inquiry, indication of interest, proposal, offer or request that the Company knows, or should would reasonably be expected to know, is seeking lead to make, or has made, a Company an Acquisition Proposal, (iii) (A) fail to makeenter into or adopt any letter of intent, heads of terms, memorandum of understanding or similar document, agreement or commitment, option agreement, or withdraw agreement in principle, merger agreement, joint venture agreement or other acquisition agreement (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal or any inquiry, indication of interest, proposal, offer or request that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement), (iv) recommend, adopt, approve, endorse or publicly propose to recommend, adopt, approve or endorse any Acquisition Proposal, (v) withhold, withdraw, or qualify, amend or modify in any a manner adverse to ParentBidco (or publicly propose to withhold, the Company Board Recommendation (it being understood that any failure withdraw, or qualify, amend or modify in a manner adverse to publiclyBidco), and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each caseor resolve or agree to take any such action, within ten (10) Business Days after a Company Acquisition Proposal is made public including requesting that the Court does not sanction the Scheme of Arrangement or any request by Parent failing to do so will be treated as a withdrawal submit the Scheme of Arrangement to the Company Board Recommendation Court for purposes hereof)sanction, (Bvi) fail to include the Company Board Recommendation in the Joint Proxy StatementScheme Circular, (vii) make any public recommendation in connection with a tender offer or exchange offer other than a recommendation in a Solicitation/Prospectus Recommendation Statement on Schedule 14D-9, against any Acquisition Proposal subject to Regulation 14D under the Exchange Act, (viii) fail to publicly reaffirm (without qualification) the Company Board Recommendation within ten (10) Business Days (or in the event the applicable Company Shareholder Meeting is scheduled to occur within such ten (10) Business Day period, prior to the fifth (5th) Business Day prior to the applicable Company Shareholder Meeting) after (1) Bidco so requests in writing (provided that Bidco may only make such request (x) once per Acquisition Proposal and (y) once if no Acquisition Proposal has been publicly disclosed) or (C2) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company an Acquisition Proposal is publicly announced or disclosed or (ix) resolve or agree to do any of the foregoing (any of the foregoing in this clauses (iv)-(viii) or clause (iiiix) (to the extent relating to clauses (iv)-(viii), a “Company Adverse Recommendation Change”)); provided, (iv) take any action that, anything to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delawarecontrary set forth in this Agreement notwithstanding, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Representatives may, in response to an Acquisition Proposal or any inquiry, indication of interest, proposal, offer or request from a Third Party (1) seek to clarify the terms and conditions of such Acquisition Proposal, inquiry, indication of interest, proposal, offer or request (including by requesting that an oral communication be made in writing) for purposes of determining if such Acquisition Proposal, inquiry, indication of interest, proposal, offer or request constitutes, or would reasonably be expected to lead to, a Superior Proposal, (2) inform such Third Party or its Representative of the restrictions imposed by the provisions of this Section 6.2 or (3) grant waivers, amendments or releases under any standstill restriction in effect on the date hereof to the extent necessary to allow such Third Party to make a confidential Acquisition Proposal, in the case of this clause (3), solely if the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law. The Company shall, and shall cause its Subsidiaries and its and its Subsidiaries’ Representatives to, cease immediately any and all existing discussions or negotiations, if any, with any Third Party conducted prior to or ongoing as of the date of this Agreement with respect to any actual or potential (including if such discussions or negotiations were for the purpose of soliciting any) Acquisition Proposal or with respect to any inquiry, indication of interest, proposal, offer or request that would reasonably be expected to lead to an Acquisition Proposal and shall promptly (but no later than two (2) Business Days after the date hereof) instruct any such Third Party (and any of its Representatives) in possession of confidential information about the Company Group that was furnished by or on behalf of the Company Group or its Representatives in connection with such discussions or negotiations to return or destroy all such information promptly after the date of this Agreement in accordance with the relevant confidentiality agreement between the Company and such Third Party.
Appears in 1 contract
Samples: Transaction Agreement (Atlantica Sustainable Infrastructure PLC)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the The Company shall not, and nor shall cause it permit any of its Subsidiariessubsidiaries to, and its and its Subsidiaries’ officersor authorize or permit any director, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case officer or employee of the CompanyCompany or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company Special Committee) or any of its subsidiaries (collectively, the “Company Representatives”), not ) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate initiate, induce or knowingly encourage the submission of any Company Acquisition Proposal, Takeover Proposal (as defined below) or (ii) enter into into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any Person any information relating to the Company or any of its Subsidiaries data or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in subsidiaries with respect to any way withCompany Takeover Proposal, or knowingly assist, participate in, otherwise facilitate or knowingly encourage any effort byor attempt to make or implement any Company Takeover Proposal, in each case other than a Company Takeover Proposal made by Parent; provided, however, that, at any Third Party time prior to acceptance of the Company Shares pursuant to the Offer, the Board of Directors may, in response to a Company Takeover Proposal that the Company knowsBoard of Directors determines in good faith, after consultation with its financial advisor, constitutes or should could reasonably be expected to know, is seeking lead to make, or has made, a Company Acquisition Takeover Proposal that is more favorable to the stockholders of the Company (taking into account the Person making the Company Takeover Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parentthe consideration offered, the likelihood and timing of consummation (including the legal, financial and regulatory aspects of the Company Takeover Proposal) as well as any other factors deemed relevant by the Board Recommendation of Directors) than the proposal evidenced by this Agreement (it being understood that any failure to publiclya “Company Competitive Proposal”), and without qualification (x) recommend against any furnish information with respect to the Company Acquisition and its subsidiaries to the Person making this Company Competitive Proposal (and its representatives) pursuant to a customary confidentiality agreement (which confidentiality agreement contains terms that are equivalent to, and in no respect less favorable to the Company than, the terms of the Confidentiality Agreement, dated August 30, 2002, between Parent and the Company (as it may be amended from time to time, the “Confidentiality Agreement”)), and (y) reaffirm participate in discussions or negotiations with the Person making this Company Competitive Proposal (and its representatives) regarding this Company Competitive Proposal, provided that (i) the Board of Directors determines in good faith, after consultation with its outside legal counsel, that the failure to provide such information or engage in such negotiation, would be inconsistent with the Board of Directors’ fiduciary duties under applicable Law and (ii) a copy of all the information provided to such Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent. Promptly after the execution of this Agreement, the Company Board Recommendationwill, in and will cause each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of its subsidiaries and each of the Company Board Recommendation for purposes hereof)Representatives to, (Bi) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus terminate all discussions or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve negotiations with all third parties regarding any Company Acquisition Takeover Proposal and (any ii) request the prompt return or destruction of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action all confidential information relating to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiariessubsidiaries previously furnished to any such third parties.
Appears in 1 contract
No Solicitation by the Company. (a) From The Company shall, and it shall cause the date of this Agreement until the earlier Company Subsidiary to, and it shall use its reasonable best efforts to cause each of the Effective Time Company’s and the termination Company’s Subsidiary’s respective affiliates, directors, officers, employees, agents and representatives (including without limitation any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of this Agreement its subsidiaries, but excluding each of the Parent Equity Sponsors (as defined in accordance Section 8.03), Xxxxxxx X. X’Xxxxx and any investment banker, financial advisor, attorney, accountant or other representative retained by Xxxxxxx X. X’Xxxxx or any of the Parent Equity Sponsors) to, immediately cease any discussions or negotiations with its termsany other parties that may be ongoing with respect to any Company Takeover Proposal (as defined below). The Company shall, except as otherwise set forth and it shall cause the Company Subsidiary to, promptly after the Company Stockholder Approval, require any party that previously received any confidential information of the Company or the Company Subsidiary in this Section 6.03, the connection with any Company Takeover Proposal to immediately return or destroy such information. The Company shall not, and nor shall cause it permit the Company Subsidiary to, nor shall it authorize or permit any of its Subsidiaries, and its and its Subsidiaries’ officers, or the Company Subsidiary’s directors, employeesofficers or employees or any investment banker, investment bankersfinancial advisor, attorneysattorney, accountants, consultants and accountant or other agents, advisors and representatives (including, in the case of the Company, representative retained by it or the Company Special Committee) (collectively, “Representatives”), not Subsidiary to, directly or indirectlyindirectly through another person, (i) solicit, initiate initiate, encourage or take facilitate (including by way of furnishing non-public information) any action to knowingly facilitate inquiries or knowingly encourage the submission making of any proposal which constitutes any Company Acquisition Proposal, Takeover Proposal or (ii) enter into solicit, initiate, encourage, facilitate or otherwise participate in any discussions or negotiations withregarding any Company Takeover Proposal; provided, furnish however, that if, at any information relating time prior to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records receipt of the Company or any Stockholder Approval, the Company Board determines in good faith, after consultation with outside counsel, that it is required in order to comply with its fiduciary duties to the stockholders of its Subsidiaries tothe Company under applicable law, otherwise cooperate the Company may, in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party response to a Company Takeover Proposal not solicited in violation of this Section 4.02(a) that the Company knows, or should Board believes in good faith could reasonably be expected to know, is seeking to make, or has made, result in a Company Acquisition ProposalSuperior Proposal (as defined in Section 4.02(b)), subject to providing prior written notice of its decision to take such action to Parent (iiithe “Company Notice”) (A) fail to makeand compliance with Section 4.02(c), or withdraw or qualify, amend or modify in any manner adverse to Parent, following delivery of the Company Board Recommendation (it being understood that any failure to publicly, and without qualification Notice (x) recommend against furnish information with respect to the Company to any person making such a Company Acquisition Takeover Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel), provided that, such information is also provided to Parent at or before such time, and (y) reaffirm the Company Board Recommendation, participate in each case, within ten (10) Business Days after discussions or negotiations regarding such a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal Takeover Proposal. For purposes of the Company Board Recommendation for purposes hereof)this Agreement, (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the First Effective Time and the termination of this Agreement in accordance with its termsAgreement, except as otherwise set forth in this Section 6.03Section 6.02, the Company shall not, and shall cause its Subsidiaries, Subsidiaries and its and its Subsidiaries’ officersrespective directors and officers to not, directors, employees, investment bankers, attorneys, accountants, consultants and shall use its reasonable best efforts to cause its and its Subsidiaries’ other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not torespective Representatives to not, directly or indirectly, (i) solicit, initiate or take any action to initiate, knowingly facilitate or knowingly encourage (including by way of furnishing information) any inquiries regarding, or the making or submission of any Company Acquisition Proposal, (ii) (A) enter into or participate in any discussions or negotiations withwith any Third Party, (B) furnish to any information relating to the Company or Third Party any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withinformation, or knowingly (C) otherwise assist, participate in, knowingly facilitate or knowingly encourage any effort byThird Party, any Third Party that in each case, in connection with or for the Company knows, purpose of knowingly encouraging or should reasonably be expected to know, is seeking to make, or has madefacilitating, a Company Acquisition Proposal, (iii) approve, recommend or enter into, or publicly or formally propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Acquisition Proposal, (iv) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm Parent the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iiiiv), a “Company Adverse Recommendation Change”), ) or (ivv) take any action to make any “moratorium,” ”, “control share acquisition,” ”, “fair price,” ”, “supermajority,” ”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware LawDGCL, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Terminix Global Holdings Inc)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its termsAgreement, except as otherwise set forth in this Section 6.03Section 6.02 , the Company shall not, and shall cause its SubsidiariesSubsidiaries not to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives“ Representatives ”), ) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, knows is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a ““ Company Adverse Recommendation ChangeChange ”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-anti- takeover laws and regulations of the State Commonwealth of DelawarePennsylvania, including Section 203 Subchapter F of the Delaware Chapter 25 of Pennsylvania Law, inapplicable to any Third Party or any Company Acquisition Proposal, Proposal or (v) fail to enforce, enforce or grant any waiver or release under, under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its SubsidiariesSubsidiaries unless the Board of Directors of the Company determines after consulting with its outside legal counsel that the failure to waive such provision would be inconsistent with its fiduciary duties under Applicable Law ( provided that the obligation not to fail to enforce any such standstill or similar agreement under this Section 6.02(a)(v) shall apply with respect to known breaches of such agreements only).
Appears in 1 contract
Samples: Agreement and Plan of Merger
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its termsAgreement, except as otherwise set forth in this Section 6.03Section 6.02, the Company shall not, and shall cause its SubsidiariesSubsidiaries not to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ ' officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “"Representatives”), ") not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, . or knowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, knows is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, make or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “"Company Adverse Recommendation Change”"), . (iv) take any action to make any “"moratorium,” “" "control share acquisition,” “" "fair price,” “" "supermajority,” “" "affiliate transactions” " or “"business combination statute or regulation” " or other similar anti-takeover laws and regulations of the State Commonwealth of DelawarePennsylvania, including Section 203 Subchapter F of the Delaware Chapter 25 of Pennsylvania Law, inapplicable to any Third Party or any Company Acquisition Proposal, Proposal or (v) fail to enforce, enforce or grant any waiver or release under, under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its SubsidiariesSubsidiaries unless the Board of Directors of the Company determines after consulting with its outside legal counsel that the failure to waive such provision would be inconsistent with its fiduciary duties under Applicable Law (provided that the obligation not to fail to enforce any such standstill or similar agreement under this Section 6.02(a)(v) shall apply with respect to known breaches of such agreements only).
Appears in 1 contract
Samples: Agreement and Plan of Merger
No Solicitation by the Company. (a) From Subject to the other provisions of this Section 6.3, from and after the date of this Agreement hereof until the earlier of the Effective Time and or, if earlier, the valid termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03pursuant to Article 8, the Company shall not, and shall cause its Subsidiaries, the Company Subsidiaries and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives their Representatives (including, in the case on behalf of the Company, Company or the Company Special CommitteeSubsidiaries, as applicable) (collectively, “Representatives”), not to, directly or indirectly, (i) initiate, solicit, initiate or take any action to knowingly facilitate (including by providing access to its properties, books and records or knowingly encourage data or any non-public information concerning the submission Company or any Company Subsidiary to any Third Party or group for the purpose of facilitating any inquiries, proposals or offers relating to any Company Acquisition Proposal) or knowingly encourage any inquiries, (ii) proposal or offer that constitutes or would reasonably be expected to lead to a Company Acquisition Proposal or the consummation thereof or enter into into, continue or otherwise participate or engage in any discussions or negotiations withwith respect thereto, furnish any information relating to the Company (ii) approve, endorse or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withrecommend, or knowingly assistpublicly propose to approve, participate in, facilitate endorse or knowingly encourage any effort byrecommend, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) effectuate a Company Change of Board Recommendation, (iv) enter into any merger agreement, acquisition agreement, letter of intent or other similar agreement or arrangement relating to any Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 6.3(b)), (v) take any action to exempt any Person from, or make any acquisition of securities of the Company by any Person not subject to, any state takeover statute or similar statute or regulation or any similar anti-takeover provision in the Company Charter or the Company Bylaws, that applies to the Company or (vi) authorize any of, or commit, resolve or agree to do any of the foregoing. Subject to the other provisions of this Section 6.3, the Company shall, and shall cause the Company Subsidiaries and the Company’s Representatives (on behalf of the Company or the Company Subsidiaries) to, (A) fail to makepromptly (and, or withdraw or qualify, amend or modify in any manner adverse event, within twenty-four (24) hours after the execution of this Agreement) cease any discussion or negotiation with any Persons (other than Parent and its Affiliates and Representatives on its behalf) prior to Parentthe date hereof by the Company, the Company Board Recommendation Subsidiaries or any of the Company’s Representatives with respect to any Company Acquisition Proposal, (it being understood B) promptly (and, in any event, within twenty-four (24) hours after the execution of this Agreement) terminate access by any Third Party to any physical or electronic data room relating to any Company Acquisition Proposal or any inquiry, proposal or offer that any failure constitutes or would reasonably be expected to publicly, and without qualification (x) recommend against any lead to a Company Acquisition Proposal and (yC) reaffirm the Company Board Recommendation, promptly (and in each case, any event within ten two (102) Business Days after the execution of this Agreement) request the prompt return or destruction of any confidential information provided to any Third Party. Notwithstanding anything to the contrary contained in this Section 6.3(a), the Company and the Company’s Representatives may (A) contact any Person that has made after the date of this Agreement a bona fide, unsolicited Company Acquisition Proposal solely in order to seek to clarify and understand the terms and conditions thereof (which contact, for the avoidance of doubt, shall not include any negotiation of such terms or conditions) in order to determine whether such inquiry, proposal or offer constitutes or would reasonably be expected to lead to a Superior Company Proposal and (B) inform a Third Party that has made or is considering making a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any provisions of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries6.3.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the The Company shall not, shall not authorize or permit any of its controlled affiliates or any of its or their officers, directors or employees to, and shall use its reasonable best efforts to cause any investment banker, financial advisor, attorney, accountant or other representative (a “Representative”) retained by it or any of its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), controlled affiliates not to, directly or indirectlyindirectly through another person, (i) solicit, initiate or knowingly encourage (including by way of furnishing information), or knowingly take any other action designed to knowingly facilitate facilitate, any inquiries regarding, or knowingly encourage the submission making of, any proposal the consummation of any which would constitute a Company Acquisition Proposal, Alternative Transaction or (ii) enter into or participate in any discussions or negotiations withnegotiations, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withwith any person (or group of persons), with respect to any inquiries regarding, or knowingly assist, participate in, facilitate or knowingly encourage any effort bythe making of, any Third Party proposal the consummation of which would constitute a Company Alternative Transaction, except to notify such person (or group of persons) as to the existence of the provisions of this Section 5.2; provided, however, that if, at any time prior to obtaining the Company knowsStockholder Approval, the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that any such proposal that did not result from a material breach of this Section 5.2(a) constitutes or should could reasonably be expected to know, is seeking to make, or has made, result in a Company Acquisition Superior Proposal, (iii) subject to compliance with Section 5.2(c), the Company and its Representatives may (A) fail furnish information with respect to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation and its subsidiaries to the person (or group of persons) making such proposal (and its Representatives and financing sources) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person) pursuant to a customary confidentiality agreement containing terms as to confidentiality (it being understood that such confidentiality agreement need not include any failure to publicly“standstill” terms) generally no less restrictive than the terms of the confidentiality agreement, dated December 24, 2015, as amended, entered into between the Company and Parent (the “Confidentiality Agreement”), and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include participate in discussions or negotiations regarding such proposal with the Company Board Recommendation in the Joint Proxy Statement/Prospectus person (or group of persons) making such proposal (C) recommendand its Representatives and financing sources). For purposes of this Agreement, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the The Company shall notshall, and shall cause its SubsidiariesSubsidiaries and Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Person conducted heretofore with respect to a Company Acquisition Proposal, request the return or destruction of all confidential information previously provided to such parties by or on behalf of the Company or its Subsidiaries and immediately prohibit any access by any Person (other than Parent and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in Representatives) to any physical or electronic data room relating to a possible Company Acquisition Proposal. During the case of the CompanyPre-Closing Period, the Company Special Committee) (collectivelyshall not directly or indirectly, “Representatives”)and shall cause its Subsidiaries not to, and shall use its reasonable best efforts to cause any Representative of the Company or any of its Subsidiaries not to, directly or indirectly, (i) solicit, initiate initiate, facilitate, knowingly encourage (including by way of furnishing confidential information), or induce or take any other action that could reasonably be expected to knowingly facilitate lead to any inquiries, proposals or knowingly encourage indications of interest that constitute the submission making, submission, or announcement of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any nonpublic information relating to regarding the Company or any of its Subsidiaries to any Person in connection with or afford access in response to the business, properties, assets, books a Company Acquisition Proposal or records an inquiry or indication of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party interest that the Company knows, or should would reasonably be expected to know, is seeking lead to make, or has made, a Company Acquisition Proposal, (iii) (A) fail engage in discussions or negotiations with any Person with respect to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, (iv) approve, endorse, or recommend any Company Acquisition Proposal or (v) fail enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to enforceany Company Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Required Company Stockholder Vote, this Section 5.5(a) shall not prohibit the Company from furnishing nonpublic information regarding the Company and its Subsidiaries to, or grant any waiver or release underentering into discussions with, any standstill Person in response to a written, bona fide Company Acquisition Proposal that is, or similar is reasonably likely to result in, a Superior Company Proposal that is submitted to the Company by such Person (and not withdrawn prior to the furnishing of such information or such discussions) if (1) the Company, its Subsidiaries or their respective Representatives shall not have violated any of the restrictions set forth in this Section 5.5(a), (2) the Company Board concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, (4) the Company receives from such Person an executed confidentiality agreement with respect containing limitations on the use and disclosure of nonpublic written and oral information furnished to any class of equity securities such Person by or on behalf of the Company or on terms no less favorable to the Company in the aggregate than the terms of the Confidentiality Agreement, and (5) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that if any of its Subsidiariesdirectors, executive officers or any Company Designated Representative takes any action that, if taken by the Company, would violate the restrictions set forth in the preceding sentence, then such action shall be deemed to constitute a breach of such restriction by the Company. In furtherance of its obligations hereunder, to the extent that the Company has Knowledge that any of its Representatives has taken an action that, if taken by the Company, would violate the restrictions set forth in this Section 5.5, then the Company shall immediately instruct such Representative to cease such action.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Seventy Seven Energy Inc.)
No Solicitation by the Company. (a) From Subject to the other provisions of this Section 4.2, from and after the date of this Agreement hereof until the earlier of the Effective Acceptance Time and or, if earlier, the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Article 5, the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), Subsidiaries not to, directly and shall direct its and the Company Subsidiaries’ Representatives (acting on behalf of the Company or indirectlythe Company Subsidiaries, as applicable) not to, (i) initiate, solicit, initiate or take any action to knowingly facilitate any inquiries, proposals or knowingly encourage the submission of any offers with respect to or that would reasonably be expected to lead to a Company Acquisition Proposal, (ii) enter into Proposal or participate engage in any discussions or negotiations withwith respect thereto, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with(ii) approve, or knowingly assistrecommend, participate inor publicly propose to approve, facilitate or knowingly encourage any effort byrecommend, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the effectuate a Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Change of Board Recommendation, in each case(iv) enter into any implementation agreement, within ten (10) Business Days after a Company Acquisition Proposal is made public merger agreement, acquisition agreement, letter of intent or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation other similar agreement providing for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iiiother than an Acceptable Confidentiality Agreement pursuant to Section 4.2(b), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail resolve or agree to enforce, or grant do any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the foregoing. Notwithstanding anything to the contrary contained in this Section 4.2(a), the Company and the Company’s Representatives may (1) participate in discussions with any Person that has made after the date of this Agreement a written bona fide, unsolicited Company Acquisition Proposal solely in order to seek to clarify and understand the terms and conditions thereof in order to determine whether such inquiry, proposal or any offer constitutes or would reasonably be expected to lead to a Superior Company Proposal or otherwise as may be required in accordance with the Singapore Code and (2) inform a Third Party that has made a Company Acquisition Proposal of its Subsidiariesthe provisions of this Section 4.2.
Appears in 1 contract
Samples: Transaction Implementation Agreement (Grindrod Shipping Holdings Ltd.)
No Solicitation by the Company. (a) From Except as provided in this Section 8.4(a), from the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Article X, the Company shall and its Subsidiaries will not, and shall will cause its Subsidiariesdirectors and officers, and will direct and use reasonable best efforts to cause its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants employees and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), Representatives not to, directly or indirectly, (i) solicit, initiate initiate, propose, knowingly induce the making, submission or take any action to announcement of, knowingly encourage, facilitate or knowingly encourage the submission of assist, any Company proposal or inquiry that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, ; (ii) enter into or participate in furnish to any discussions or negotiations with, furnish Person any non-public information relating to the Company or any of its Subsidiaries or afford to any Person access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Company or and any of its Subsidiaries toSubsidiaries, otherwise cooperate in any way withsuch case with the intent to solicit or induce the making, submission or announcement of, or to knowingly assist, participate in, facilitate encourage or knowingly encourage any effort byfacilitate, any Third Party proposal or inquiry that the Company knowsconstitutes, or should could reasonably be expected to knowlead to, is seeking to make, or has made, a Company an Acquisition Proposal, ; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (Aother than informing such Persons of the provisions contained in this Section 8.4(a) fail and contacting the Person making the Acquisition Proposal to makethe extent necessary solely to clarify the terms of the Acquisition Proposal in connection with determining whether the Acquisition Proposal constitutes a Superior Proposal); (iv) approve, endorse or recommend any proposal that constitutes, or withdraw could reasonably be expected to lead to, an Acquisition Proposal; or qualify(v) enter into any letter of intent, amend memorandum of understanding, merger agreement, acquisition agreement or modify in other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any manner adverse such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to Parentan Acquisition Transaction, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company an “Alternative Acquisition Proposal and (y) reaffirm the Company Board RecommendationAgreement”), in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal other than in respect of Parent, its Affiliates and their respective Affiliates in respect of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its SubsidiariesTransactions.
Appears in 1 contract
No Solicitation by the Company. (a) From Except as set forth in Sections 7.11(b) through (d) hereof, the Company agrees that, following the date of this Agreement until and prior to the earlier of the Effective Time and or the termination of date on which this Agreement in accordance with is terminated pusuant to Section 9.1, neither it nor any Company Subsidiary shall, and that it shall use reasonable best efforts to cause its terms, except as otherwise set forth in this Section 6.03, and each of the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ Subsidiary’s officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), agents not to, directly or indirectly, (i) knowingly solicit, initiate or take encourage any action inquiry or proposal that constitutes or could reasonably be expected to knowingly facilitate or knowingly encourage the submission of any lead to a Company Acquisition Proposal, (ii) enter into provide any non-public information or participate data to any Person relating to or in connection with a Company Acquisition Proposal, engage in any discussions or negotiations with, furnish any information relating to the concerning a Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way withAcquisition Proposal, or otherwise knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected attempt to know, is seeking to make, make or has made, implement a Company Acquisition Proposal, (iii) (A) fail approve, recommend, agree to makeor accept, or withdraw or qualifypropose publicly to approve, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt agree to or approve or publicly propose to recommendaccept, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (viv) fail approve, recommend, agree to enforceor accept, or grant any waiver propose to approve, recommend, agree to or release underaccept, or execute or enter into, any standstill letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Company Acquisition Proposal. Without limiting the foregoing, any violation of the restrictions set forth in the preceding sentence by any of the Company Subsidiaries or any of the Company’s or the Company Subsidiaries’ officers, directors, employees, agents or representatives (including any investment banker, attorney or accountant retained by the Company or the Company Subsidiaries) shall be a breach of this Section 7.11(a) by the Company. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any class of equity securities of Company Acquisition Proposal (except with respect to the Company or any of its Subsidiariestransactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fairpoint Communications Inc)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the East/Toucan Effective Time and or, if earlier, the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03, the Company shall not, and nor shall cause it authorize or permit any of its Subsidiaries, and Affiliates or any of its and its Subsidiaries’ officers, or their respective directors, employees, officers or employees or any of its or their respective investment bankers, attorneys, accountants, consultants and attorneys or other agentsadvisors, advisors and agents or representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not ) to, directly or indirectly, (i) solicitdirectly or indirectly solicit or initiate, initiate or take any action to knowingly facilitate or knowingly encourage the submission of encourage, induce or facilitate, any Company Acquisition ProposalTransaction or any inquiry or proposal that may reasonably be expected to lead to a Company Acquisition Transaction, or (ii) enter into directly or indirectly participate in any discussions or negotiations withwith any Person regarding, or furnish to any Person any information relating to the with respect to, or cooperate in any way with any Person (whether or not a Person making a Company Acquisition Transaction) with respect to, any Company Acquisition Transaction or any inquiry or proposal that may reasonably be expected to lead to a Company Acquisition Transaction. The Company shall, and shall instruct its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person (other than Parent and its Representatives) conducted heretofore with respect to any Company Acquisition Transaction or any inquiry or proposal that may reasonably be expected to lead to a Company Acquisition Transaction, and request the prompt return or destruction of all confidential information previously furnished to any such Person or its Subsidiaries Representatives, and immediately terminate all physical and electronic data room access previously granted to any such Person or afford access its Representatives, in connection with any actual or potential proposal by such Person to acquire the businessCompany. Without limiting the foregoing, properties, assets, books or records it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Affiliates of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that their Representatives shall constitute a breach of this Section 5.02(a) by the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its SubsidiariesCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Engility Holdings, Inc.)
No Solicitation by the Company. (a) From the date of this Agreement Date until the earlier of the Effective Time and the termination of this Agreement in accordance with its termsTime, except as otherwise set forth in expressly permitted by this Section 6.03Section 5.2, the Company shall will not, and shall the Company will cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly (i) solicit, initiate, knowingly encourage, knowingly induce, knowingly assist, or knowingly facilitate any inquiries regarding, or the submission or announcement by any Person of, any proposal, indication of interest or offer that constitutes, or would reasonably be expected to lead to, the submission of any Takeover Proposal (provided, however, that the Company, its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in their Representatives may refer the case Person making such proposal or offer to the provisions of the Company, the Company Special Committee) (collectively, “Representatives”this Section 5.2), not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to regarding the Company or any of its Subsidiaries to any Person, or afford access to the businessCompany’s or its Subsidiaries’, propertiesbooks, assetsrecords or property in connection with a Takeover Proposal; (iii) engage in, books enter into, continue or records otherwise participate in any discussions or negotiations with any Person with respect to any Takeover Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Takeover Proposal (provided, however, that the Company and its Representatives may refer the Person making any such inquiry, proposal or offer to the provisions of this Section 5.2); (iv) adopt, approve or enter into any letter of intent, agreement in principle, memorandum of understanding, merger agreement, purchase agreement, or similar document, agreement, or commitment with respect to any Takeover Proposal (a “Company Acquisition Agreement”), other than an Acceptable Confidentiality Agreement; or (v) agree to do any of the foregoing; provided, however, that the foregoing clauses (i) through (v) will not prohibit the Company or any of its Subsidiaries tofrom amending, otherwise cooperate in any way with, modifying or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant granting any waiver or release underunder any standstill, any standstill confidentiality or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, but solely to the extent necessary to allow for a Takeover Proposal to be made to the Company or the Company Board, if the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board under applicable Law. Notwithstanding anything to the contrary contained in this Agreement, if the Company receives a written bona fide written Takeover Proposal after the Agreement Date that did not result from a breach of this Section 5.2(a), then the Company and its Representatives may make inquiries of such Person making such Takeover Proposal (and its Representatives) solely to ascertain facts regarding, and clarify the terms of, such written Takeover Proposal for the purpose of the Company Board informing itself about such Takeover Proposal and the Person making it.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Meridian Bioscience Inc)
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Section 6.3, the Company shall not, and shall cause its Subsidiaries, controlled Affiliates and its and its Subsidiaries’ their respective officers, directorsdirectors and employees not to, employees, and shall use reasonable best efforts to cause its and their respective investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), ) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate (including by way of providing non-public information) or knowingly encourage or induce the submission of any Company Acquisition Proposal or any inquiry or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party (excluding Affiliates) that the Company knows, or should reasonably be expected to know, is considering, seeking to make, or has made, a Company Acquisition Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Acquisition Proposal, ; (iii) (A) fail to make, or withdraw or qualify, amend or modify modify, in each case, in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or Prospectus, (C) recommend, adopt or approve any Company Acquisition Proposal, (D) enter into or publicly propose approve, recommend or declare advisable for the Company or any of its Subsidiaries to recommendexecute or enter into, adopt any agreement, letter of intent, understanding, agreement in principle or approve other similar arrangement (other than a Company Acceptable Confidentiality Agreement) in connection with any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), ; (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws Laws and regulations of the State of Delaware, including Section 203 of the Delaware LawDGCL, inapplicable to any Third Party or any Company Acquisition Proposal, ; or (v) fail resolve, propose or agree to enforce, or grant do any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiariesforegoing.
Appears in 1 contract
No Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the Effective Time and or the termination of date, if any, on which this Agreement in accordance with its termsis terminated pursuant to Section 8.01, and except as otherwise set forth provided for in this Section 6.03Agreement, the Company shall not, and shall cause its Subsidiaries, Affiliates not to and shall not authorize or permit its and its Subsidiaries’ their respective directors, officers, directors, employees, investment bankers, financial advisors, attorneys, accountantsaccountants or other advisors, consultants and other agents, advisors and agents or representatives (including, in the case of the Company, the Company Special Committee) (collectively, collectively “Representatives”), not ) to, directly or indirectly, : (i) solicit, initiate or take any action to initiate, knowingly facilitate or knowingly encourage the submission or making of any Company Acquisition Competing Proposal, (ii) enter into or participate in any discussions or negotiations withregarding, or furnish to any person any material nonpublic information relating in furtherance of (excluding, for the avoidance of doubt, information furnished to the Company a current or prospective commercial counterparty (including any of its Subsidiaries customer or afford access to the business, properties, assets, books or records supplier) of the Company or any of its Subsidiaries tofor the sole purpose of furthering an existing or prospective commercial arrangement with such person and, otherwise cooperate in any way withevent, or knowingly assist, participate in, facilitate or knowingly encourage not in contemplation of any effort byCompany Competing Proposal), any Third Party that the Company knows, Competing Proposal or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in enter into any manner adverse to Parent, the agreement regarding a Company Board Recommendation (it being understood that any failure to publiclyCompeting Proposal. The Company shall, and without qualification (x) recommend against shall cause its Affiliates and its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement person conducted heretofore with respect to any class Company Competing Proposal and promptly request the prompt return or destruction of equity securities all confidential information previously furnished, and the Company shall take all reasonably necessary actions to secure its rights and ensure the performance of any such person’s obligations under any applicable confidentiality agreement to return or destroy such information. The Company shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between the Company and any person (other than Parent), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such person to submit a Company Competing Proposal. The Company shall ensure that its Representatives are aware of the Company provisions of this Section 5.03, and any violation of the restrictions contained in this Section 5.03 by its Board of Directors (including any committee thereof) or any its Representatives shall be deemed to be a breach of its Subsidiariesthis Section 5.03 by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hertz Global Holdings Inc)
No Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Agreement, the Company shall not, and nor shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or it permit any of its Subsidiaries to, nor shall it authorize or afford access to knowingly permit any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative (collectively, the business“Representatives”) of, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with(i) solicit, initiate or knowingly assist, participate in, facilitate or knowingly intentionally encourage the submission of any effort by, any Third Party that the Company knows, or should reasonably be expected to know, is seeking to make, or has made, a Company Acquisition Takeover Proposal, (iiiii) (A) fail to makeenter into any letter of intent, memorandum of understanding or withdraw or qualify, amend or modify in any manner adverse to Parent, the Company Board Recommendation (it being understood that any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class Company Takeover Proposal or (iii) other than informing persons of equity securities the existence of this Section 5.2, provide any non-public information regarding the Company to any third party or engage in any negotiations or substantive discussions in connection with any Company Takeover Proposal; provided, however, that prior to the receipt of Shareholder Approval, the Company and the Representatives of the Company may, in response to a Company Takeover Proposal that was not solicited, initiated or knowingly or intentionally encouraged by the Company or a Representative of the Company in breach of this Section 5.2(a), make such inquiries as may be necessary to inform itself of the proposed terms and details of the unsolicited Company Takeover Proposal and, if the Company Board determines in good faith, after consultation with counsel and its financial advisor, that the following actions could result in the Company Takeover Proposal becoming a Company Superior Proposal, may provide any non-public information regarding the Company to any third-party or engage in any negotiations or substantive discussions with such person regarding any Company Takeover Proposal. The Company shall, and shall cause each of its Subsidiaries to, immediately cease and cause to be terminated any existing activities, discussions or negotiations by the Company, any Subsidiary of the Company or any Representative of its Subsidiariesthe Company, with any parties conducted heretofore with respect to any of the foregoing.
Appears in 1 contract
No Solicitation by the Company. (aThe Company shall, and shall cause its Subsidiaries and Affiliates and each of its and its Subsidiaries’ and Affiliates’ respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions or negotiations with any Person conducted heretofore with respect to, or which would reasonably be expected to lead to, a Takeover Proposal; provided, however, that nothing in this Section 4.2(b) From shall preclude the Company or its Representatives from contacting any such party or parties solely for the purpose of complying with the provisions of the first clause of this sentence. Subject to the terms and provisions of this Section 4.2(b), from the date of this Agreement hereof until the earlier of the Effective Time and Time, or, if earlier, the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Section 6.1, the Company shall not, and shall cause its Subsidiaries, Subsidiaries and Affiliates and each of its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), Affiliates’ respective Representatives not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly initiate, facilitate or knowingly encourage (including by way of providing or making available information for the purpose of soliciting, initiating, encouraging or facilitating) any inquiries, discussions or negotiations regarding, or the submission or announcement of any Company Acquisition proposals or offers that constitute, or would reasonably be expected to lead to, any Takeover Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish provide any information relating to concerning the Company or any of its Subsidiaries to any Person or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should group who would reasonably be expected to know, is seeking to makemake any Takeover Proposal or otherwise in connection with, or has madefor the purpose of soliciting, initiating, encouraging or facilitating, any Takeover Proposal or any inquiries, discussions or negotiations with respect to a Company Acquisition Takeover Proposal or that would reasonably be expected to lead to a Takeover Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify engage in any manner adverse discussions or negotiations regarding any Takeover Proposal or that would reasonably be expected to Parent, the Company Board Recommendation (it being understood that any failure lead to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”)Takeover Proposal, (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations by resolution of the State of DelawareCompany Board, including Section 203 of any committee thereof, or otherwise (A) approve, support, recommend, enter into or adopt, or (B) propose to approve, support, recommend, enter into or adopt, (X) any Takeover Proposal (other than a Superior Proposal in accordance with the Delaware Law, inapplicable to terms and conditions hereof) or (Y) any Third Party Contract providing for or any Company Acquisition letter of intent or similar document, agreement, commitment, understanding or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Takeover Proposal or that would reasonably be expected to lead to a Takeover Proposal, or (v) fail to enforceotherwise cooperate with or assist or participate in, or grant facilitate or encourage any waiver such inquiries, proposals, offers, discussions or release undernegotiations. Wherever the term “group” is used in this Section 4.2(b), any standstill or similar agreement with respect to any class it is used as defined for purposes of equity securities of Rule 13d-3 under the Company or any of its SubsidiariesExchange Act.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement until the earlier of the Effective Time and or the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03pursuant to Section 9.01, the Company shall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, agrees that neither the Company Special Committee) (collectively, “Representatives”), not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or nor any of its Subsidiaries or afford access to nor any of the business, properties, assets, books or records directors and officers of the Company or any of its Subsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly, initiate, solicit, encourage or otherwise cooperate in facilitate (including by way of furnishing information or assistance) any way with, Acquisition Proposal or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party inquiries that the Company knows, or should may reasonably be expected to know, is seeking lead to make, or has made, a Company an Acquisition Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify in any manner adverse to Parent, . The Company further agrees that neither the Company Board Recommendation (it being understood that nor any failure to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (its Subsidiaries nor any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws directors and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities officers of the Company or any of its SubsidiariesSubsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly, engage in any discussion with or provide any confidential information or data to any Person that may reasonably be expected to lead to an Acquisition Proposal or engage in any negotiations concerning, or otherwise facilitate any effort or attempt to make or implement, an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company shall be permitted (A), to the extent applicable, to comply, with regard to an Acquisition Proposal, with Rule 14e-2(a) promulgated under the Exchange Act, (B) in response to an unsolicited bona fide written Acquisition Proposal from any Person, to recommend such Acquisition Proposal to the Company's stockholders or withdraw or modify in any adverse manner its approval or recommendation of this Agreement, or both, or (C) to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person, if and only to the extent that, in any such case described in clause (B) or (C), (i) the Required Company Vote shall not have been theretofore obtained, (ii) the Board of Directors of the Company shall have concluded in good faith that such Acquisition Proposal (x) in the case of that described in clause (B) above would, if consummated, constitute a Superior Proposal or (y), in the case described in clause (C) above could reasonably be expected to constitute a Superior Proposal, (iii) the Board of Directors of the Company shall have determined in good faith on the basis of advice of outside legal counsel that such action is necessary for such Board of Directors to act in a manner consistent with its fiduciary duties under applicable Law and (iv) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors shall AGREEMENT AND PLAN OF MERGER -33- have received from such Person an executed confidentiality agreement containing customary terms and provisions. The Company shall promptly notify the Parent of such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Nothing in this Section 6.03 shall permit the Parent or the Company to terminate this Agreement (except as specifically provided in Article IX).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dresser Industries Inc /De/)
No Solicitation by the Company. (a) From and after the date of this Agreement until the earlier termination of this Agreement, the Effective Time Company shall, and will use its best efforts to cause its officers, directors, employees and other representatives and agents (collectively, "Company Representatives") to, immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any parties conducted heretofore with respect to, or that would reasonably be expected to lead to, any Company Takeover Proposal. From and after the date of this Agreement until the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Agreement, the Company shall not, and shall will use its reasonable best efforts to cause its Subsidiaries, and its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or take any action to knowingly designed to, or which would reasonably be expected to, facilitate any inquiries or knowingly encourage the submission making of any a Company Acquisition Takeover Proposal, (ii) approve or recommend or propose to approve or recommend, or enter into any agreement, arrangement or understanding with respect to any Company Takeover Proposal (other than a confidentiality agreement entered into in accordance with the provisions of this Section 6.3(a)) or (iii) other than informing Persons of the existence of the provisions contained in clause (i) of this sentence, participate in any discussions or negotiations withregarding, or furnish or disclose to any Person (other than a party to this Agreement) any non-public information relating or data with respect to the Company in connection with any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Company Takeover Proposal; provided, however, that at any time prior to obtaining the Company Stockholder Merger Approval, (1) in response to a Company Takeover Proposal (A) that has not been solicited, initiated or knowingly encouraged by the Company or any Company Representative and (B) that the Board of its Subsidiaries or afford access to the business, properties, assets, books or records Directors of the Company or any of its Subsidiaries to, otherwise cooperate determines in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should good faith (after consultation with outside counsel) may reasonably be expected to know, is seeking to make, constitute or has made, constitutes a Company Acquisition ProposalSuperior Proposal (as defined below), (iii) (A) fail to makeand which Company Takeover Proposal was made after the date hereof and did not otherwise result, directly or withdraw or qualifyindirectly, amend or modify in any manner adverse to Parent, from a breach by the Company Board Recommendation (it being understood that any failure to publiclyof this Section 6.3, and without qualification (2) after the Company gives Parent written notice of such determination (which notice shall include the material terms of such Company Takeover Proposal and the identity of the person making it) the Company may, subject to compliance with this Section 6.3(a), directly or indirectly, (x) recommend against furnish information with respect to the Company to the Person making such Company Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement (which agreement shall be no more favorable, in any Company Acquisition Proposal material respect, to such Person than the Parent Confidentiality Agreement), and (y) reaffirm participate in discussions or negotiations with the Person making such Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Takeover Proposal (any of the foregoing in this clause (iii), a “and its representatives) regarding such Company Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Company Acquisition Takeover Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wellsford Real Properties Inc)
No Solicitation by the Company. (aThe Company shall, and shall cause its Subsidiaries and Affiliates and each of its and its Subsidiaries' and Affiliates' respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions or negotiations with any Person conducted heretofore with respect to, or which would reasonably be expected to lead to, a Takeover Proposal; provided, however, that nothing in this Section 4.2(b) From shall preclude the Company or its Representatives from contacting any such party or parties solely for the purpose of complying with the provisions of the first clause of this sentence. Subject to the terms and provisions of this Section 4.2(b), from the date of this Agreement hereof until the earlier of the Effective Time and Time, or, if earlier, the termination of this Agreement in accordance with its terms, except as otherwise set forth in this Section 6.03Section 6.1, the Company shall not, and shall cause its Subsidiaries, Subsidiaries and Affiliates and each of its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants ' and other agents, advisors and representatives (including, in the case of the Company, the Company Special Committee) (collectively, “Representatives”), Affiliates' respective Representatives not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly initiate, facilitate or knowingly encourage (including by way of providing or making available information for the purpose of soliciting, initiating, encouraging or facilitating) any inquiries, discussions or negotiations regarding, or the submission or announcement of any Company Acquisition proposals or offers that constitute, or would reasonably be expected to lead to, any Takeover Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish provide any information relating to concerning the Company or any of its Subsidiaries to any Person or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that the Company knows, or should group who would reasonably be expected to know, is seeking to makemake any Takeover Proposal or otherwise in connection with, or has madefor the purpose of soliciting, initiating, encouraging or facilitating, any Takeover Proposal or any inquiries, discussions or negotiations with respect to a Company Acquisition Takeover Proposal or that would reasonably be expected to lead to a Takeover Proposal, (iii) (A) fail to make, or withdraw or qualify, amend or modify engage in any manner adverse discussions or negotiations regarding any Takeover Proposal or that Table of Contents would reasonably be expected to Parent, the Company Board Recommendation (it being understood that any failure lead to publicly, and without qualification (x) recommend against any Company Acquisition Proposal and (y) reaffirm the Company Board Recommendation, in each case, within ten (10) Business Days after a Company Acquisition Proposal is made public or any request by Parent to do so will be treated as a withdrawal of the Company Board Recommendation for purposes hereof), (B) fail to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Company Acquisition Proposal (any of the foregoing in this clause (iii), a “Company Adverse Recommendation Change”)Takeover Proposal, (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations by resolution of the State of DelawareCompany Board, including Section 203 of any committee thereof, or otherwise (A) approve, support, recommend, enter into or adopt, or (B) propose to approve, support, recommend, enter into or adopt, (X) any Takeover Proposal (other than a Superior Proposal in accordance with the Delaware Law, inapplicable to terms and conditions hereof) or (Y) any Third Party Contract providing for or any Company Acquisition letter of intent or similar document, agreement, commitment, understanding or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Takeover Proposal or that would reasonably be expected to lead to a Takeover Proposal, or (v) fail to enforceotherwise cooperate with or assist or participate in, or grant facilitate or encourage any waiver such inquiries, proposals, offers, discussions or release undernegotiations. Wherever the term "group" is used in this Section 4.2(b), any standstill or similar agreement with respect to any class it is used as defined for purposes of equity securities of Rule 13d-3 under the Company or any of its SubsidiariesExchange Act.
Appears in 1 contract
