No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary to, directly or indirectly (i) solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitate, or furnish or disclose non-public information in furtherance of, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Brookfield Renewable Partners L.P.), Agreement and Plan of Reorganization (TerraForm Power, Inc.), Agreement and Plan of Reorganization (TerraForm Power, Inc.)
No Solicitation by the Company. (a) The From the date of this Agreement through the Effective Time, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or direct permit any officerof its or its Subsidiaries’ directors, director officers or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company retained by it or any Company Subsidiary of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitateencourage (including by way of furnishing information or assistance), or furnish take any other action designed to facilitate or disclose non-public information in furtherance ofthat is likely to result in, any Company Takeover Proposal inquiries or the making of any inquiry or proposal that would constitutes, or is reasonably be expected likely to result in or lead to a Company Takeover to, any Acquisition Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Acquisition Proposal or (iv) furnish make or disclose authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, extent that, prior to obtaining (i) the Required Company Shareholder Approvalsapproval of this Agreement by the Company’s shareholders has not occurred, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that (ii) the Company Board (acting on the recommendation of the Special Committee) reasonably determines in good faith (faith, after consultation with its outside legal counsel and financial advisor) constitutescounsel, or could reasonably that such action would be expected required in order for directors of the Company to result comply with their respective fiduciary duties under applicable law in or lead toresponse to a bona fide, a Superior Proposal, and which Company Takeover written Acquisition Proposal did not result from a material breach solicited in violation of this Section 7.02(a6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), subject to compliance with Section 7.02(c), the Company may (x1) furnish information with respect to the Company and the Company Subsidiaries to the person any Person making such Company Takeover an Acquisition Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making (as determined by the Company Takeover Proposal after consultation with its outside legal counsel) on terms substantially similar to, and its Representatives than no less favorable to the Confidentiality Agreement Company than, the terms contained in any such agreement between the Company and Parent, (an “Acceptable Confidentiality Agreement”) and (y2) participate in discussions or negotiations with the person making regarding such Company Takeover an Acquisition Proposal and its Representatives, (3) authorize any statement or recommendation in each case if support of such an Acquisition Proposal and so long as the Company Board (acting on the recommendation of the Special Committee) determines effect a Change in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)Recommendation.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Northeast Pennsylvania Financial Corp), Agreement and Plan of Merger (Banknorth Group Inc/Me), Agreement and Plan of Merger (KNBT Bancorp Inc)
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 through the Effective Time, the Company shall not, nor shall it authorize or direct permit the Bank or any Company Subsidiary toof its or the Bank’s directors, nor shall it authorize officers or direct any officer, director or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary retained by it to, directly or indirectly through another person, (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitateencourage (including by way of furnishing information or assistance), or furnish take any other action designed to facilitate or disclose non-public information in furtherance ofthat is likely to result in, any Company Takeover Proposal inquiries or the making of any inquiry or proposal that would constitutes, or is reasonably be expected likely to result in or lead to a Company Takeover to, any Acquisition Proposal, (ii) except in accordance with Section 9.1(f) hereof, enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Proposal Acquisition Proposal, or (iv) furnish make or disclose to authorize any person statement, recommendation or solicitation in support of any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal; provided, however, that prior to the 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), if, and only to the extent that, prior the Board of Directors of the Company determines in good faith, after consultation with its outside legal and financial advisors, that the failure to obtaining do so would reasonably be expected to breach the Required Company Shareholder ApprovalsBoard’s fiduciary duties under applicable law, the Company and its Representatives may, in response to a bona fide written Company Takeover Acquisition Proposal not solicited in violation of this Section 7.2(a) that the Company Board (acting on the recommendation of Directors of the Special Committee) determines Company believes in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, constitutes a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), 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 7.02(c)7.2(b) hereof, following delivery of the Company Notice, (x1) furnish information with respect to the Company and the Company Subsidiaries to the any person making such Company Takeover a Superior Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making (as determined by the Company Takeover Proposal and after consultation with its Representatives outside counsel) on terms no more favorable to such person than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) terms contained in any such agreement between the Company and Buyer, and (y2) participate in discussions or negotiations with the person making regarding such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Superior Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
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) The Company shall not, nor shall it authorize or direct permit any Company Subsidiary to, nor shall it authorize or direct permit any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, of the Company or any Company Subsidiary to, directly or indirectly (i) solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitate, or furnish or disclose non-public information in furtherance of, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a5.02(a)) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), or (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal person (other than the Company’s Representatives) regarding, or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to to, or otherwise cooperate in any way with any person (whether or not a person making a Company Takeover Proposal) with respect to, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on or the recommendation of the Special Committee) Transaction Committee determines in good faith (after consultation with its outside legal counsel and financial advisor) is bona fide and constitutes, or could is reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal was unsolicited, was made after the date of this Agreement and did not otherwise result from a material breach of this Section 7.02(a5.02(a), subject to compliance with Section 7.02(c5.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the person (or group of persons) making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on or the recommendation of the Special Transaction Committee) , as applicable, determines in good faith after consultation with its outside legal counsel that the failure to provide providing such information or engage engaging in such negotiations or discussions would is reasonably likely to be inconsistent required for the directors to comply with its their fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a5.02(a) by any Representative or affiliate of the Company or any Company Subsidiary, whether or not such person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 7.02(a5.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of ParentCompany. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives)person, if any, that has executed a confidentiality agreement in the last 6 12 months in respect of a Company Takeover Proposal to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately reasonably promptly terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (British American Tobacco p.l.c.), Agreement and Plan of Merger (Reynolds American Inc)
No Solicitation by the Company. (a) The From the date hereof until the termination hereof and except as expressly permitted by the following provisions of this Section 5.5, the Company shall will not, nor shall will it permit any of its subsidiaries to, nor will it authorize or direct any Company Subsidiary to, nor shall it authorize or direct permit any officer, director or employee of, of or any investment banker, attorney, accountant or other advisor, agent advisor or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary of its subsidiaries to, directly or indirectly indirectly, (i) solicit, initiateinitiate or encourage the submission of any Company Acquisition Proposal (as defined in Section 5.5(c)), knowingly encourage, knowingly induce (ii) participate in any discussions or knowingly facilitatenegotiations regarding, or furnish or disclose to any person any non-public information in furtherance ofwith respect to the Company or any of its subsidiaries, or take any other action to facilitate, any Company Takeover Acquisition Proposal or any inquiry inquiries or the making of any proposal that would constitutes, or may reasonably be expected to result in or lead to a to, any Company Takeover Acquisition Proposal, (iiiii) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company, or (iv) enter into any agreement with respect to any a Company Takeover Acquisition Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making itother than a confidentiality agreement as described below), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, that nothing contained in this Section 5.5(a) shall prohibit the Company and its Representatives mayBoard from furnishing information to, in response to a or entering into discussions or negotiations with, any person that makes an unsolicited bona fide written offer or proposal that constitutes a Company Takeover Acquisition Proposal that if, and only to the extent that, (A) such action is taken prior to receipt of the Company Board Requisite Vote, (acting on B) the recommendation Company Board, after consultation with and based upon the advice of the Special Committee) outside legal counsel, determines in good faith that such action is consistent with its fiduciary duties to the Company stockholders under applicable Law, (C) the Company Board determines in good faith, after consultation with its outside legal counsel and an independent, nationally recognized financial advisor) constitutes, that such Company Acquisition Proposal, if accepted, would constitute, or could is reasonably be expected likely to result in or lead to, a Company Superior ProposalProposal (as hereinafter defined), and which (D) prior to taking such action, the Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect provides reasonable notice to Parent to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided effect that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to taking such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) action and (y) participate receives from such person an executed confidentiality agreement in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Lawreasonably customary form. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution For purposes of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)."
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Metro Networks Inc), Agreement and Plan of Merger (Westwood One Inc /De/)
No Solicitation by the Company. (a) The From and after the date of this Agreement, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary toof its Subsidiaries, nor shall it authorize or direct permit any officer, director or employee of, of or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, the “Representatives”) of, the Company or any Company Subsidiary of its Subsidiaries to, directly or indirectly (i) solicit, initiate, knowingly encourage, knowingly induce facilitate or knowingly facilitate, or furnish or disclose non-public information in furtherance of, encourage the submission of any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement other than a confidentiality agreement in accordance with this Section 7.02(a5.2 ) and except that the Company may ascertain facts from or resolve, agree or propose to take any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)actions, or (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person provide any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal third party or engage in any inquiry negotiations or proposal that would reasonably be expected to result discussions in connection with, or lead to a otherwise cooperate in any way with, any Company Takeover Proposal; provided, however, that, that prior to obtaining the Required Company Shareholder Approvalsreceipt of the Stockholder Approval, the Company and its the Representatives of the Company may, in response to a bona fide written Company Takeover Proposal that was not solicited by the Company or its Subsidiaries or any of its or their Representatives and did not otherwise result from a breach of this Section 5.2, if the Company Board (acting on the recommendation of the Special Committee) determines in good faith (faith, after consultation with its outside legal counsel and its financial advisor) constitutes, or could that the following actions would reasonably be expected to result in or lead to, the Company Takeover Proposal becoming a Company Superior Proposal, and which provide any non-public information regarding the Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person Person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement substantially similar to, and not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than such Person than, the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) provided that such confidentiality agreement and (y) participate in discussions or negotiations any related agreement shall not contain any provision calling for a right to negotiate exclusively with the person Person making such Company Takeover Proposal and its Representatives, in each case if and so long as or having the effect of prohibiting the Company Board (acting from satisfying any of its obligations under this Agreement, provided, further, that all information provided to a third party under this Section 5.2 is provided or made available on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure a prior or substantially concurrent basis to provide Parent and Merger Sub if such information has not previously been provided to Parent or Merger Sub) or engage in such any negotiations or discussions would 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 inconsistent terminated any existing activities, discussions or negotiations by the Company, any Subsidiary of the Company or any Representative of the Company or its Subsidiaries with any parties (other than Parent and Merger Sub) conducted heretofore with respect to any of the foregoing and request from each Person that has executed a confidentiality agreement with the Company the prompt return or destruction of all confidential information previously furnished to such Person or its fiduciary duties under applicable LawRepresentatives and terminate access by each such Person and its Representatives to any online or other data rooms containing any information in respect of the Company or any of its Subsidiaries. Without limiting the foregoing, it It is agreed understood that any violation of the restrictions set forth in this Section 7.02(a5.2(a) by any Representative of the Company or any Company Subsidiary of its Subsidiaries shall be deemed to be a breach of this Section 7.02(a5.2(a) by the Company. Neither the Company unless (i) such violation is committed without nor the knowledge Company Board shall approve, or take any action to render Section 203 of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware DGCL or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives any similar takeover statute inapplicable to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (Company Takeover Proposal other than Parent and its Representatives) conducted prior to the date of this Agreement in connection with entering into a definitive agreement with respect to a Company Takeover Superior Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representativesthe extent permitted under Section 5.2(b), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf ). Table of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).Contents
Appears in 2 contracts
Samples: Agreement and Plan of Merger (BAE Systems, Inc.), Agreement and Plan of Merger (Bae Systems PLC)
No Solicitation by the Company. (a) The Company agrees that it, prior to the Effective Time, shall not, directly or indirectly, nor shall it authorize or direct permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or direct permit any officer, director director, employee or employee agent of, or any investment banker, attorney, accountant or other advisor, agent advisor or representative (collectively, “Representatives”) of, the Company or any of its Subsidiaries (collectively, the "Company Subsidiary Representatives") to, directly or indirectly (i) through another Person, solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitatefacilitate the making, submission or announcement of any Acquisition Proposal, or participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or disclose non-public information in furtherance of, take any Company Takeover Proposal other action to facilitate any inquiries or the making of any inquiry or proposal that constitutes, or would reasonably be expected to result in or lead to a Company Takeover to, any Acquisition Proposal, (ii) or approve, endorse or recommend any Acquisition Proposal, or enter into any letter of intent, agreement with respect in principle, acquisition agreement or other document or contract contemplating or otherwise relating to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required adoption and approval of this Agreement by the requisite Company Shareholder ApprovalsStockholder Approval, the foregoing shall not prohibit the Company and its Representatives mayfrom furnishing information to or entering into discussions or negotiations with, in response to a any Person that makes an unsolicited bona fide written Company Takeover Proposal that proposal to enter into a business combination with the Company pursuant to an Acquisition Proposal which the Board (acting on the recommendation of Directors of the Special CommitteeCompany (or any committee thereof considering such proposal) determines in good faith determines is reasonably likely to be more favorable to the Company's stockholders than the transactions contemplated by this Agreement (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a "Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a"), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).as:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Clear Channel Communications Inc), Agreement and Plan of Merger (SFX Entertainment Inc)
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct permit any Company Subsidiary toof its Subsidiaries, nor shall it authorize any of its or direct any officertheir respective directors, director officers or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, retained by the Company or any Company Subsidiary in connection with the transactions contemplated by this Agreement (collectively, "Representatives") to, directly or indirectly through another person, (i) solicit, initiate, cause, knowingly encourage, knowingly induce or knowingly facilitate, any inquiries or furnish or disclose non-public information in furtherance of, the making of any Company Takeover Proposal or any inquiry or proposal that would constitutes or is reasonably be expected likely to result in or lead to a Company Takeover Proposal, Proposal or (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Proposal Proposal, or (iv) furnish or disclose to any person any non-public information regarding the Company in connection with or any Company Subsidiary with respect to in furtherance of any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) the preceding sentence by any Representative of the Company or any Company Subsidiary of its Subsidiaries shall be deemed to be a breach of this Section 7.02(a5.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of ParentCompany. Upon execution of this Agreement, the The Company shall, and shall cause each Company Subsidiary its Subsidiaries and shall direct instruct its and their Representatives to, (A) immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Company Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval (other than 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 Board of Directors of the Company determines in good faith constitutes or is reasonably likely to constitute a Company Superior Proposal, the Company may, if its Board of Directors determines in good faith (after consultation with outside counsel) that it is necessary to do so in order to comply with 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 two Business Days 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) conducted pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement, provided that all such information (to the extent that such information has not been previously provided to Parent) is provided to Parent prior to or substantially concurrent with the date of this Agreement time it is provided to such person, and (B) participate in discussions or negotiations with respect to a the person making such Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a (and its Representatives) regarding such Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Unitedhealth Group Inc), Agreement and Plan of Merger (Mid Atlantic Medical Services Inc)
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) ofDuring the Pre-Closing Period, the Company shall not directly or indirectly, and shall not authorize or permit any of the other Acquired Corporations or any Company Subsidiary to, Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitatefacilitate the making, submission or furnish or disclose non-public information in furtherance of, announcement of any Company Takeover Acquisition Proposal or take any inquiry or proposal action that would could reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal, (ii) enter into furnish any agreement information regarding any of the Acquired Corporations to any Person in connection with or in response to a Company Acquisition Proposal or an inquiry or indication of interest that could lead to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iiiiv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into, participate in into any letter of intent or continue similar document or any discussions Contract contemplating or negotiations with respect otherwise relating to any Company Takeover Proposal Acquisition Transaction; PROVIDED, HOWEVER, that this Section 4.3(a) shall not prohibit (A) the Company, or (iv) furnish or disclose to any person any non-public the Board of Directors of the Company, from furnishing nonpublic information regarding the Company Acquired Corporations to, or entering into discussions with, any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, Person in response to a bona fide written Company Takeover Proposal Superior Offer that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive nor any Representative of any of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that Acquired Corporations shall have violated any violation of the restrictions set forth in this Section 7.02(a4.3, (2) by any Representative the Board of Directors of the Company or any Company Subsidiary shall be deemed to be a breach concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the Board of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge Directors of the Company to comply with its fiduciary obligations to the Company's stockholders under applicable Legal Requirements, (3) at least three (3) business days 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, and the Company uses its reasonable best efforts to promptly cure receives from such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has Person an executed a confidentiality agreement in containing customary limitations on the last 6 months to return or destroy use and disclosure of all nonpublic written and oral information heretofore furnished to such person Person or its any of such Person's Representatives by or on behalf of the Company or any Company Subsidiary Company, and (C4) immediately terminate all physical at least two (2) business days 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); or (B) the Company from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and electronic data room access previously granted agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any person or its Representatives (other than Parent and its Representatives)of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger And (Titan Corp), Agreement and Plan of Merger And (Datron Systems Inc/De)
No Solicitation by the Company. (a) The Company shall notExcept as expressly permitted by this Section 7.04, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, none of the Company or any of the Company Subsidiary to, Subsidiaries shall (whether directly or indirectly through its Representatives or other intermediaries), nor shall the Company authorize or permit any of its Representatives to: (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitate, encourage or furnish or disclose non-public information in furtherance of, knowingly facilitate any Company Takeover Acquisition Proposal or knowingly take any inquiry or proposal action that would reasonably be expected to result in or lead to a any Company Takeover Acquisition Proposal, or endorse any Company Acquisition Proposal; (ii) enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement or other agreement (x) to consummate any Company Acquisition Proposal or otherwise relating to any Company Acquisition Proposal (other than a confidentiality agreement entered into in connection with furnishing information in accordance with Section 7.04(b)), (y) to approve or endorse any Company Acquisition Proposal or (z) to require the Company, in connection with any Company Acquisition Proposal, to abandon, terminate or fail to consummate the Merger; (iii) enter into or participate in any discussions or negotiations in connection with any Company Acquisition Proposal or inquiry with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect furnish to any Company Takeover Proposal or (iv) furnish or disclose to any person Person any non-public information regarding the Company with respect to its business, properties or assets in connection with any Company Subsidiary Acquisition Proposal; or (iv) agree or publicly propose or resolve to take, or take, any of the actions prohibited by clause (i), (ii) or (iii) of this sentence. The Company shall immediately cease, and cause its Representatives to immediately cease, any and all existing activities, discussions or negotiations with any parties conducted with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines matters referenced in good faith (after consultation with the preceding sentence. The Company shall, and shall cause its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead Affiliates to, promptly request any Person that has executed a Superior Proposal, and which confidentiality or non-disclosure agreement in connection with any actual or potential Company Takeover Acquisition Proposal did not result from a material breach to return or destroy all confidential information in the possession of such Person or its Representatives. Any violation of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) 7.04 by any Representative of the Company or any the Company Subsidiary Subsidiaries shall be deemed to be a breach of this Section 7.02(a) 7.04 by the Company unless Company. For purposes of this Section 7.04 (i) such violation is committed without the knowledge including for purposes of the defined term “Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (iiAcquisition Proposal” below) such Representative is also a Representative of Parent. Upon execution of this Agreementonly, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).term “
Appears in 2 contracts
Samples: Management and Advisory Agreement (Gannett Co., Inc.), Management and Advisory Agreement (New Media Investment Group Inc.)
No Solicitation by the Company. (a) The Company shall notnot directly or indirectly, nor and shall it not authorize or direct permit any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, Representative of the Company or any Company Subsidiary to, directly or indirectly to, (i) solicit, initiate, knowingly encourage, knowingly induce encourage or knowingly facilitateinduce, or furnish facilitate the making, submission or disclose non-public information in furtherance of, announcement of any Company Takeover Acquisition Proposal or take any inquiry or proposal action that would could reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal, (ii) enter into furnish any agreement information regarding the Company to any Person in connection with or in response to a Company Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iiiiv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into, participate in into any letter of intent or continue similar document or any discussions Contract contemplating or negotiations with respect otherwise relating to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover ProposalAcquisition Transaction; provided, however, that, that prior to obtaining the adoption of this Agreement by the Required Company Shareholder ApprovalsStockholder Approval, this Section 4.4(a) shall not prohibit the Company and its Representatives mayfrom furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a bona fide written Company Takeover Proposal Superior Offer that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect is submitted to the Company by such Person (and not withdrawn) if (A) neither the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive nor any Representative of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions shall have breached or negotiations taken any action inconsistent with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation any of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions provisions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal4.4, (B) promptly request each person (other than Parent and the Board of Directors of the Company concludes in good faith, after having taken into account the advice of its Representatives), if anyoutside legal counsel, that has such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company’s stockholders under applicable law, (C) at least three business days prior to furnishing any such 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 information to, or enter into discussions with, such Person, and the Company receives from such Person an executed a confidentiality agreement in containing customary limitations on the last 6 months to return or destroy use and disclosure of all nonpublic written and oral information heretofore furnished to such person or its Representatives Person by or on behalf of the Company or any Company Subsidiary and containing customary “standstill” provisions, and (CD) immediately terminate all physical at least three business days prior to furnishing any such 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 electronic data room access previously granted agrees that any action inconsistent with any of the provisions set forth in the preceding sentence by any Representative of the Company whether or not such Representative is purporting to any person or its Representatives (other than Parent and its Representatives)act on behalf of the Company, shall be deemed to constitute a breach of this Section 4.4 by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (RHL Group, Inc.), Agreement and Plan of Merger and Reorganization (Favrille Inc)
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct permit any Company Subsidiary toof its Subsidiaries, nor shall it authorize any of its or direct any officertheir respective directors, director or employee ofofficers, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by the Company or any Subsidiary in connection with the transactions contemplated by this Agreement (collectively, “Representatives”) of, the Company or any Company Subsidiary to, directly or indirectly through another person, (i) solicit, initiate, cause, knowingly encourage, knowingly induce or knowingly facilitate, any inquiries or furnish or disclose non-public information in furtherance of, the making of any Company Takeover Proposal or any inquiry or proposal that would constitutes or is reasonably be expected likely to result in or lead to a Company Takeover Proposal, Proposal or (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Proposal Proposal, or (iv) furnish or disclose to any person any non-public information regarding the Company in connection with or any Company Subsidiary with respect to in furtherance of any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) the preceding sentence by any Representative of the Company or any Company Subsidiary of its Subsidiaries shall be deemed to be a breach of this Section 7.02(a5.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of ParentCompany. Upon execution of this Agreement, the The Company shall, and shall cause each Company Subsidiary its Subsidiaries and shall direct instruct its and their Representatives to, (A) immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted previously with respect to any Company Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval (other than 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 advice of a financial advisor of nationally recognized reputation and of its 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 advice of its outside counsel) that it is necessary to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, and subject to compliance with Section 5.02(e) and after giving Parent two business days 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) conducted pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement, provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrent with the date of this Agreement time it is provided or made available to such person, as the case may be, and (B) participate in discussions or negotiations with respect to a the person making such Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a (and its Representatives) regarding such Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (NWH Inc), Agreement and Plan of Merger (Unitedhealth Group Inc)
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) ofExcept as expressly permitted by this Section 5.4, the 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 Subsidiary Takeover Proposal and (ii) not to, directly or indirectly indirectly, (iA) solicit, initiate, knowingly encourage, knowingly induce encourage or knowingly facilitatefacilitate any inquiries regarding, or furnish the making of any proposal or disclose non-public information in furtherance ofoffer that constitutes, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to to, a Company Takeover Proposal, (iiB) enter into engage in, continue or otherwise participate in any agreement with respect 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 (except other than, solely in response to an Acceptable Confidentiality Agreement in accordance with unsolicited inquiry, to refer the inquiring person to this Section 7.02(a) 5.4, and except provided, that the Company and its Representatives may ascertain facts from any 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 Company Board and the Special Committee in each case of Directors informing itself about such Company Takeover Proposal and the person making it, but in each case limiting its communication exclusively to such referral and such ascertaining of facts), or (iiiC) approve, adopt, recommend or enter into, participate in or continue propose to approve, adopt, recommend or enter into, any discussions letter of intent or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; providedsimilar document, howeveragreement, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutescommitment, or could reasonably be expected to result agreement in principle (whether written or lead tooral, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (xbinding or nonbinding) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal Proposal. The Company shall not, and shall cause its affiliates not to, release any third party from, or waive, amend or modify any inquiry provision of, or proposal that would reasonably be expected grant permission under, or fail to result enforce, any standstill provision in or lead any agreement to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of which the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted of its affiliates is a party; provided that, with respect to any person that did not submit an indication of interest or its Representatives (other than Parent bid to acquire the Company during the period between March 1, 2016 and its Representatives)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 Directors.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Analog Devices Inc), Agreement and Plan of Merger (Linear Technology Corp /Ca/)
No Solicitation by the Company. (a) Upon execution of this Agreement, the Company shall immediately terminate any discussions with any person (other than Purchaser and its representatives) concerning an Acquisition Proposal. The Company shall not, nor shall it authorize directly or direct any Company Subsidiary toindirectly, nor shall it authorize or direct through any officer, director or employee ofdirector, or any investment bankerfinancial advisor, attorney, accountant representative, subsidiary or other advisoragent of the Company, agent or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary to, directly or indirectly (i) take any action to solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitate, continue or furnish or disclose non-public information in furtherance of, encourage any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal, (ii) enter into engage in negotiations or discussions (whether such discussions or negotiations are initiated by the Company, such other person or otherwise) concerning, or provide any agreement with respect non-public information to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from person relating to, any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)possible Acquisition Proposal, (iii) enter intointo an agreement with any person providing for a possible Acquisition Proposal or make any public statement, participate recommendation or solicitation in or continue support of any discussions or negotiations with respect to possible Acquisition Proposal by any Company Takeover Proposal person, in each case other than Purchaser and the Merger Subsidiary, or (iv) furnish agree to, enter into a letter of intent or disclose to similar document concerning, or recommend, any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal; provided, however, thatthat nothing contained in this Agreement shall prevent the Company, prior or its Board of Directors, from (A) furnishing non-public information to, or entering into discussions or negotiations with, any person in connection with an unsolicited, bona fide, written Acquisition Proposal by such person or recommending an unsolicited, bona fide, written Acquisition Proposal by such person to obtaining the Required Company Shareholder Approvalsstockholders of the Company, if and only to the extent that (1) the Board of Directors of the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside independent financial and legal counsel and financial advisoradvisors) constitutes, or could that such Acquisition Proposal is reasonably be expected likely to result in or lead a Superior Proposal and the Board of Directors of the Company determines in good faith (after consultation with independent legal advisors) that such action is necessary for such Board of Directors to comply with its fiduciary duties to stockholders under applicable law and (2) prior to furnishing such non-public information to, a Superior Proposalor entering into discussions or negotiations with, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c)such person, (x) furnish information such Board of Directors receives from such person an executed confidentiality agreement with respect terms no less favorable to the Company and no more favorable to such person than those terms contained in the letter agreement dated February 25, 2002 between Purchaser and the Company, as amended by the Addendum dated March 2003 between Purchaser and the Company Subsidiaries to (the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and "NONDISCLOSURE AGREEMENT"), (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).such
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ramsay Youth Services Inc), Agreement and Plan of Merger (Lamela Luis E)
No Solicitation by the Company. (a) The Subject to Section 5.3(b) and Section 5.3(d), during the Interim Period, the Company shall not, nor shall it authorize or direct permit any of the Company Subsidiary Subsidiaries or any of its or their respective Representatives to, nor shall it authorize directly or direct indirectly, except as otherwise provided below: (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, non-public information relating to the Company or any Company Subsidiary toSubsidiary), directly or indirectly (i) solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitate, or furnish or disclose non-public information in furtherance of, take any Company Takeover Proposal or any inquiry or proposal that other action which would reasonably be expected to result in or lead to a Company Takeover the making, submission or announcement of, any proposal or inquiry that constitutes, or is reasonably likely to lead to, an Acquisition Proposal, ; (ii) other than informing Persons of the provisions contained in this Section 5.3, enter into, continue or participate in any discussions or any negotiations regarding any Acquisition Proposal or otherwise take any action to knowingly facilitate or knowingly induce any effort or attempt to make or implement an Acquisition Proposal (including any Acquisition Proposal received prior to the date of this Agreement; (iii) approve, endorse or recommend an Acquisition Proposal or any letter of intent, memorandum of understanding or Contract contemplating an Acquisition Proposal or requiring the Company to abandon or terminate its obligations under this Agreement, or enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal foregoing; or (iv) furnish agree, resolve or disclose commit to do any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Lawforegoing. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the The Company shall, and shall cause each the Company Subsidiary Subsidiaries and shall direct its and their respective Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) Person previously conducted prior to the date of this Agreement with respect to a any Acquisition Proposal. The Company Takeover Proposal shall promptly deny to any third party access to any data room (virtual or actual) containing any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all confidential information heretofore previously furnished to any such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted third party relating to any person or its Representatives (other than Parent and its Representatives)Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Synageva Biopharma Corp.), Agreement and Plan of Merger (Trimeris Inc)
No Solicitation by the Company. (a) The From and after the date hereof, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary toof its Subsidiaries, nor shall it authorize any of its or direct any officertheir respective directors, director or employee ofofficers, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by the Company or any Subsidiary in connection with the transactions contemplated by this Agreement (collectively, “Representatives”) of, the Company or any Company Subsidiary to, directly or indirectly through another person, (i) solicit, initiate, cause, knowingly encourage, knowingly induce or knowingly facilitate, any inquiries or furnish or disclose non-public information in furtherance of, the making of any Company Takeover Proposal or any inquiry or proposal that would constitutes or is reasonably be expected likely to result in or lead to a Company Takeover Proposal, Proposal or (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Proposal Proposal, or (iv) furnish or disclose to any person any non-public information regarding the Company in connection with or any Company Subsidiary with respect to in furtherance of any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) the preceding sentence by any Representative of the Company or any Company Subsidiary of its Subsidiaries shall be deemed to be a breach of this Section 7.02(a5.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of ParentCompany. Upon execution of this Agreement, the The Company shall, and shall cause each Company Subsidiary its Subsidiaries and shall direct instruct its and their Representatives to, (A) immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Company Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval (other than 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 consultation with a financial advisor of nationally recognized reputation and outside counsel and in light of all circumstances that the Company Board deems reasonably relevant, including, without limitation, the terms and conditions of such proposal and this Agreement) constitutes or is reasonably likely to lead to a Company Superior Proposal, the Company may, if the Company Board determines in good faith (after receiving advice of its outside counsel) that its failure to do so could reasonably be expected to be considered a breach of its fiduciary duties to the stockholders of the Company under applicable Law, and subject to compliance with Section 5.02(c) after giving Parent at least 24 hours’ prior 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) conducted pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement (except for such changes specifically necessary in order for the Company to be able to comply with its obligations under this Agreement), provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrent with the date of this Agreement time it is provided or made available to such person, as the case may be, and (B) participate in discussions or negotiations with respect to a the person making such Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a (and its Representatives) regarding such Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mgi Pharma Inc), Agreement and Plan of Merger (Guilford Pharmaceuticals Inc)
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) ofExcept as otherwise permitted by this Agreement, the Company or any Company Subsidiary 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 other Representatives not to, directly or indirectly indirectly, (i) solicit, initiate, knowingly encourageinduce, knowingly induce or knowingly facilitate, or furnish or disclose non-public information in furtherance of, knowingly encourage any Acquisition Proposal with respect to the Company Takeover Proposal or any inquiry inquiry, expression of interest, proposal or proposal offer that would could reasonably be expected to result in or lead to a Company Takeover such an Acquisition Proposal, ; (ii) enter into take any agreement action to make the provisions of any Takeover Statute (including approving any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the DGCL) inapplicable to any transaction contemplated by an Acquisition Proposal with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), Company; (iii) enter into, participate in in, maintain or continue any communications, discussions or negotiations with respect regarding, or deliver or make available to any Company Takeover Proposal or (iv) furnish or disclose to any person Person any non-public information regarding the Company or any Company Subsidiary with respect to to, or take any Company Takeover Proposal other action regarding, any inquiry, expression of interest, proposal or any inquiry or proposal offer that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover an Acquisition Proposal did not result from a material breach of this Section 7.02(a), subject with respect to compliance with Section 7.02(c)the Company, (xiv) furnish information 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 and the Company Subsidiaries (whether binding or nonbinding); (v) terminate, amend, release, modify or fail to the person making such Company Takeover Proposal and its Representatives enforce any provision (provided that all such information has been provided including any standstill or made available similar provision) of, or grant any permission, waiver or request under, any confidentiality, standstill or similar agreement; or (vi) resolve, propose or agree to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive do any of the person making foregoing. Promptly upon the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shallshall and shall cause the Company Subsidiaries to, and shall cause each Company Subsidiary and shall direct its and their respective directors and officers to, and shall use reasonable best efforts to cause its other Representatives to, (A) immediately cease and cause to be terminated all existing discussions or negotiations with any person (other than Parent and its Representatives) Person conducted prior to the date of this Agreement heretofore with respect to a Company Takeover Proposal any Acquisition Proposal, or any inquiry or proposal that would could reasonably be expected to result in or lead to a Company Takeover Proposalan Acquisition Proposal with respect to the Company, (B) promptly use reasonable best efforts to request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to prompt return or destroy destruction of all confidential information heretofore furnished with respect to such person or its Representatives by or on behalf 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 any Company Subsidiary and (C) immediately destroyed, promptly terminate all physical and electronic data room access previously granted to any person such Person or its Representatives Representatives. Notwithstanding the foregoing provisions of 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 (other than 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 information to such Person, to the extent such information has not been previously furnished by the Company to Parent and its Representatives)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) The From and after the date of this Agreement until the termination of this Agreement, the Company shall notshall, nor shall it authorize or direct any Company Subsidiary toand will use its best efforts to cause its officers, nor shall it authorize or direct any officerdirectors, director or employee of, or any investment banker, attorney, accountant or employees and other advisor, agent or representative representatives and agents (collectively, “"Company Representatives”") of, the Company or any Company Subsidiary to, directly or indirectly (i) solicitimmediately cease and cause to be terminated immediately all existing activities, initiate, knowingly encourage, knowingly induce or knowingly facilitatediscussions and negotiations with any parties conducted heretofore with respect to, or furnish or disclose non-public information in furtherance of, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in lead to, any Company Takeover Proposal. From and after the date of this Agreement until the termination of this Agreement, the Company shall not, and will use its reasonable best efforts to cause its Company Representatives not to, directly or lead to indirectly, (i) solicit, initiate or knowingly encourage or take any action designed to, or which would reasonably be expected to, facilitate any inquiries or the making of a Company Takeover Proposal, (ii) approve or recommend or propose to approve or recommend, or enter into any agreement agreement, arrangement or understanding with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement other than a confidentiality agreement entered into in accordance with the provisions of this Section 7.02(a6.3(a)) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), or (iii) enter intoother than informing Persons of the existence of the provisions contained in clause (i) of this sentence, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal regarding, or (iv) furnish or disclose to any person Person (other than a party to this Agreement) any non-public information regarding the Company or any Company Subsidiary data with respect to the Company in connection with any Company Takeover Proposal inquiries or the making of any inquiry or proposal that constitutes, or would reasonably be expected to result in or lead to a to, any Company Takeover Proposal; provided, however, that, that at any time prior to obtaining the Required Company Shareholder ApprovalsStockholder Merger Approval, the Company and its Representatives may, (1) in response to a bona fide written Company Takeover Proposal (A) that has not been solicited, initiated or knowingly encouraged by the Company or any Company Representative and (B) that the Company Board (acting on the recommendation of Directors of the Special Committee) Company determines in good faith (after consultation with its outside legal counsel and financial advisorcounsel) constitutes, or could may reasonably be expected to result in constitute or lead to, constitutes a Company Superior ProposalProposal (as defined below), and which Company Takeover Proposal was made after the date hereof and did not result otherwise result, directly or indirectly, from a material breach by the Company of this Section 7.02(a)6.3, and (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 7.02(c6.3(a), directly or indirectly, (x) furnish information with respect to the Company and the Company Subsidiaries to the person Person making such Company Takeover Proposal (and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such personrepresentatives) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives (which agreement shall be no more favorable, in any material respect, to such Person than the Confidentiality Agreement (an “Acceptable Parent Confidentiality Agreement”) ), and (y) participate in discussions or negotiations with the person Person making such Company Takeover Proposal (and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committeerepresentatives) determines in good faith after consultation with its outside legal counsel that the failure to provide regarding such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wellsford Real Properties Inc)
No Solicitation by the Company. (a) The From the date of this Agreement through the Effective Time, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or direct permit any officerof its or its Subsidiaries’ directors, director officers or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company retained by it or any Company Subsidiary of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitateencourage (including by way of furnishing information or assistance), or furnish take any other action designed to facilitate or disclose non-public information in furtherance ofthat is likely to result in, any Company Takeover Proposal inquiries or the making of any inquiry or proposal that would constitutes, or is reasonably be expected likely to result in or lead to a Company Takeover to, any Acquisition Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Acquisition Proposal or (iv) furnish make or disclose authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, extent that, prior to obtaining (i) the Required Company Shareholder Approvalsapproval of this Agreement by the Company’s shareholders has not occurred, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that (ii) the Company Board (acting on the recommendation of the Special Committee) reasonably determines in good faith (faith, after consultation with its outside legal counsel and financial advisor) constitutescounsel, or could reasonably that such action would be expected required in order for directors of the Company to result comply with their respective fiduciary duties under applicable law in or lead toresponse to a bona fide, a Superior Proposal, and which Company Takeover written Acquisition Proposal did not result from a material breach solicited in violation of this Section 7.02(a6.06(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.06(b), subject to compliance with Section 7.02(c), the Company may (x1) furnish information with respect to the Company and the Company Subsidiaries to the person any Person making such Company Takeover an Acquisition Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making (as determined by the Company Takeover Proposal after consultation with its outside legal counsel) on terms substantially similar to, and its Representatives than no less favorable to Parent than, the Confidentiality Agreement terms contained in any such agreement between the Company and Parent, (an “Acceptable Confidentiality Agreement”) and (y2) participate in discussions or negotiations with the person making regarding such Company Takeover an Acquisition Proposal and its Representatives(3) authorize any statement or recommendation in support of such an Acquisition Proposal and withhold, in each case if and so long as the Company Board (acting on withdraw, amend or modify the recommendation of the Special Committee) determines referred in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)6.02.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Banknorth Group Inc/Me)
No Solicitation by the Company. (a) The Neither the Company nor any of its Subsidiaries nor any of the officers and directors of any of them shall, and the Company shall notdirect and use its reasonable best efforts to cause its and its Subsidiaries' employees, nor shall it authorize or direct any Company Subsidiary toagents and representatives, nor shall it authorize or direct any officer, director or employee of, or including any investment banker, attorney, attorney or accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company retained by it or any of its Subsidiaries (the Company, its Subsidiaries and their respective officers, directors, employees, agents and representatives being the "Company Subsidiary Representatives") not to, directly or indirectly through another Person, (i) initiate, solicit, initiate, encourage or otherwise knowingly encourage, knowingly induce facilitate any inquiries (by way of furnishing information or knowingly facilitate, otherwise) or furnish or disclose non-public information in furtherance of, the making of any Company Takeover Acquisition Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or engage in any negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover concerning an Acquisition Proposal; provided, however, thatthat the Company's Board of Directors may, prior to obtaining the Required Company Shareholder Approvals, or may authorize the Company and its Representatives mayto, in response to a an unsolicited bona fide written Company Takeover Acquisition Proposal that the Company Board (acting on the recommendation of Directors of the Special Committee) determines Company concludes in good faith (after consultation with its outside legal counsel and financial advisor) constitutesis, or could is reasonably be expected likely to result in or lead tobecome, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company its Subsidiaries to the person any Person making such Company Takeover Superior Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making regarding such Company Takeover Proposal and its RepresentativesSuperior Proposal; provided that, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure prior to provide taking any such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreementaction, the Company shall, and shall cause each provides reasonable advance notice to the Parent that it is taking such action. The Company Subsidiary and shall direct its and their Representatives to, (A) will immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any person (other than Parent and its Representatives) parties conducted prior to the date of this Agreement heretofore with respect to a the actions described in clauses (i) and (ii) above. The Company Takeover Proposal or any inquiry or proposal agrees that would reasonably be expected it will take the necessary steps to result inform promptly the Company Representatives of the obligations undertaken in or lead to a this Section 5.7. The Company Takeover Proposal, (B) also will promptly request each person (other than Parent and its Representatives), if any, Person that has heretofore executed a confidentiality agreement in the last 6 months connection with its consideration of an Acquisition Proposal to return or destroy (and certify the destruction of, if required under the terms of the confidentiality agreement) all confidential information heretofore furnished to such person or its Representatives Person by or on behalf of the Company or any of its subsidiaries in accordance with the terms of such confidentiality agreement, and the Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted will use its best efforts, subject to Section 5.7(b), to enforce the provisions of such confidentiality agreements, including, without limitation, any person or its Representatives (other than Parent and its Representatives).standstill provisions. For purposes of this Agreement "
Appears in 1 contract
Samples: Isp Opco Holdings Inc
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct permit any Company Subsidiary of its subsidiaries to, nor shall it authorize or direct permit any officerof its or any of its subsidiaries' directors, director officers or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company retained by it or any Company Subsidiary of its subsidiaries to, directly or indirectly through another person, (i) solicit, initiateinitiate or encourage (including by way of furnishing information), knowingly encourageor take any other action intended to, knowingly induce or knowingly which could reasonably be expected to, facilitate, any inquiries or furnish or disclose non-public information in furtherance of, the making of any Company Takeover Proposal or any inquiry or proposal that would constitutes, or could reasonably be expected to result in lead to, any Takeover Proposal or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, continue or otherwise participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal regarding, or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to to, or otherwise cooperate in any Company Takeover Proposal or way with, any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided. Notwithstanding the foregoing, however, in the event that, prior to obtaining notwith standing compliance with the Required Company Shareholder Approvalspreceding sentence, the Company and its Representatives may, in response to receives a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of Directors of the Special Committee) Company determines in good faith (after consultation with its outside legal counsel and a financial advisoradvisor of nationally recognized reputation) constitutes, constitutes or could is reasonably be expected likely to result in or lead to, to a Superior Proposal, and which the Company Takeover Proposal did not result from a material breach of this Section 7.02(a)may, subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and extent that the Board of Directors of the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives determines in good faith (provided after consultation with outside counsel) that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available required to such person) pursuant do so in order to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and comply with its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) fiduciary duties, participate in discussions or negotiations with the person making regarding such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines order to inform itself in good faith after consultation with its outside legal counsel that the failure a manner required to provide such information or engage in such negotiations or discussions would be inconsistent comply with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).Takeover
Appears in 1 contract
No Solicitation by the Company. (a) The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notuse all reasonable efforts to cause its and its Subsidiaries' employees, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company retained by it or any Company Subsidiary of its Subsidiaries) not to (and shall not authorize any of them to), directly or indirectly indirectly: (i) solicit, initiate, knowingly encourage, knowingly facilitate or induce any inquiry with respect to, or knowingly facilitatethe making, submission or announcement of, any Acquisition Proposal with respect to itself, (ii) participate in any discussions or negotiations regarding, or furnish to any person or disclose non-public entity any nonpublic information in furtherance ofwith respect to, or take any Company Takeover Proposal other action to facilitate any inquiries or the making of any inquiry or proposal that would constitutes or may reasonably be expected to result in or lead to, any Acquisition Proposal with respect to a Company Takeover Proposalitself, (iiiii) engage in discussions with any person or entity with respect to any Acquisition Proposal with respect to itself, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal with respect to itself (except to the extent specifically permitted pursuant to Section 6.11 and Section 8.1(g)), or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal or transaction contemplated thereby with respect to any Company Takeover Proposal itself (except an Acceptable Confidentiality Agreement in accordance with this as permitted pursuant to Section 7.02(a) 6.11 and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making itSection 8.1(g), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the ). The Company and its Representatives maySubsidiaries shall, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries shall use all reasonable efforts to the person making such Company Takeover Proposal cause its and its Representatives Subsidiaries' officers, directors, employees, agents and representatives (provided that all such information has been provided including any investment banker, attorney or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time accountant retained by it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(aits Subsidiaries) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease any and cause to be terminated all existing activities, discussions or negotiations with any person (other than Parent and its Representatives) third parties conducted prior to the date of this Agreement heretofore with respect to a any Acquisition Proposal with respect to itself. The Company Takeover Proposal or any inquiry or proposal shall ensure that would reasonably be expected to result in or lead to a Company Takeover Proposalits officers, (B) promptly request each person (other than Parent directors and key employees and its Representatives)investment bankers, if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf attorneys and other representatives are aware of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)provisions of this Section.
Appears in 1 contract
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct permit any Company Subsidiary toof its Subsidiaries, nor shall it authorize any of its or direct any officertheir respective directors, director or employee ofofficers, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, retained by the Company or any Company Subsidiary in connection with the transactions contemplated by this Agreement (collectively, "Representatives") to, directly or indirectly through another person, (i) solicit, initiate, cause, knowingly encourage, knowingly induce or knowingly facilitate, any inquiries or furnish the making of any proposal that constitutes or disclose non-public information in furtherance of, any Company is reasonably likely to lead to a Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Proposal Proposal, or (iv) furnish or disclose to any person any non-public information regarding the Company in connection with or in furtherance of any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) the preceding sentence by any Representative of the Company or any Company Subsidiary of its Subsidiaries shall be deemed to be a breach of this Section 7.02(a5.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of ParentCompany. Upon execution of this Agreement, the The Company shall, and shall cause each Company Subsidiary its Subsidiaries and shall direct instruct its and their Representatives to, (A) 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. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval (other than and in no event after obtaining such Company Shareholder Approval), in response to an unsolicited bona fide written Takeover Proposal made after the date hereof that the Company Board determines in good faith (after receiving advice of a financial advisor of nationally recognized reputation, which may be Cohen & Steers Capital Advisors, LLC, and of its outside counsel) consxxxxxes or is reasonably likely to constitute a Superior Proposal, the Company may, if the Company Board determines in good faith (after receiving advice of its outside counsel) that it is necessary to do so in order to comply with its fiduciary duties to the shareholders of the Company under applicable Law, and subject to compliance with Section 5.02(c) and after giving Parent two business days written notice of such determination, (A) furnish information with respect to the Company and its Subsidiaries to the person making such Takeover Proposal (and its Representatives) conducted pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement, provided that all such oral or written information (to the extent that such information has not been previously provided to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrent with the date of this Agreement with respect time it is provided or made available to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposalsuch person, as the case may be, and (B) promptly request each participate in discussions or negotiations with the person making such Takeover Proposal (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to ) regarding such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)Takeover Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Brookdale Senior Living Inc.)
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) ofDuring the Pre-Closing Period, the Company shall not directly or indirectly, and shall not authorize or permit any of the other Acquired Corporations or any Company Subsidiary to, Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitatefacilitate the making, submission or furnish or disclose non-public information in furtherance of, announcement of any Company Takeover Acquisition Proposal or take any inquiry or proposal action that would could reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal, (ii) enter into furnish any agreement information regarding any of the Acquired Corporations to any Person (other than Parent or Merger Sub) in connection with or in response to a Company Acquisition Proposal or an inquiry or indication of interest that reasonably could be expected to lead to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iiiiv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into, participate in into any letter of intent or continue similar document or any discussions Contract contemplating or negotiations with respect otherwise relating to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover ProposalAcquisition Transaction; provided, however, thatthat this Section 4.3(a) shall not prohibit (A) the Company, prior to obtaining or the Required Company Shareholder ApprovalsBoard of Directors of the Company, from furnishing nonpublic information regarding the Company and its Representatives mayAcquired Corporations to, or entering into discussions with, any Person in response to a bona fide written Company Takeover Proposal Superior Offer that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive nor any Representative of any of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that Acquired Corporations shall have violated any violation of the restrictions set forth in this Section 7.02(a4.3, (2) by any Representative the Board of Directors of the Company or any Company Subsidiary shall be deemed to be a breach concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the Board of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge Directors of the Company to comply with its fiduciary obligations to the Company under applicable Legal Requirements, (3) the Board of Directors determines in good faith, after consultation with its outside legal counsel, that taking such action would be reasonably likely to lead to the delivery of a Company Superior Offer, (4) at least two (2) business days 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, and the Company uses its reasonable best efforts to promptly cure receives from such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has Person an executed a confidentiality agreement in containing customary limitations on the last 6 months to return or destroy use and disclosure of all nonpublic written and oral information heretofore furnished to such person Person or its any of such Person's Representatives by or on behalf of the Company or any Company Subsidiary Company, and (C5) immediately terminate all physical at least two (2) business days 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); or (B) the Company from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and electronic data room access previously granted agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any person or its Representatives (other than Parent and its Representatives)of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company.
Appears in 1 contract
Samples: Ii Agreement and Plan of Reorganization (Titan Corp)
No Solicitation by the Company. (aA) The Company shall notnot directly or indirectly, nor and shall it not authorize or direct permit any of the other Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, Entities or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, Representative of any of the Company or any Company Subsidiary to, Entities directly or indirectly to, (i) solicit, initiate, knowingly encourage, knowingly induce encourage or knowingly facilitateinduce, or furnish facilitate the making, submission or disclose non-public information in furtherance of, announcement of any Company Takeover Acquisition Proposal or take any inquiry or proposal action that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal, (ii) enter into furnish any agreement information regarding any of the Company Entities to any Person in connection with or in response to a Company Acquisition Proposal or an inquiry or indication of interest that could lead to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iiiiv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into, participate in into any letter of intent or continue similar document or any discussions Contract contemplating or negotiations with respect otherwise relating to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover ProposalAcquisition Transaction; provided, however, that, that prior to obtaining the adoption of this Agreement by the Required Company Shareholder ApprovalsStockholder Vote, this Section 4.3(a) shall not prohibit the Company and its Representatives mayfrom furnishing nonpublic information regarding the Company Entities to, or entering into discussions with, any Person in response to a bona fide written Company Takeover Proposal Superior Offer that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive nor any Representative of any of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions Entities shall have breached or negotiations taken any action inconsistent with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation any of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions provisions set forth in this Section 7.02(a4.3, (2) by any Representative the board of directors of the Company or any Company Subsidiary shall be deemed to be a breach concludes in good faith, after having taken into account the advice of this Section 7.02(a) by its outside legal counsel, that such action is required in order for the Company unless (i) such violation is committed without the knowledge board of directors of the Company to comply with its fiduciary obligations to the Company's stockholders under applicable law, (3) at least three business days prior to furnishing any such 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 information to, or enter into discussions with, such Person, and the Company uses its reasonable best efforts to promptly cure receives from such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has Person an executed a confidentiality agreement in containing customary limitations on the last 6 months to return or destroy use and disclosure of all nonpublic written and oral information heretofore furnished to such person or its Representatives Person by or on behalf of the Company or any Company Subsidiary and containing customary "standstill" provisions, and (C4) immediately terminate all physical at least three business days prior to furnishing any such 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 electronic data room access previously granted agrees that any action inconsistent with any of the provisions set forth in the preceding sentence by any Representative of any of the Company Entities, whether or not such Representative is purporting to act on behalf of any person or its Representatives (other than Parent and its Representatives)of the Company Entities, shall be deemed to constitute a breach of this Section 4.3 by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Med-Design Corp)
No Solicitation by the Company. (ai) The Company shall notExcept as permitted by this Section 4.5(a), nor shall it authorize or direct without the prior written consent of Orion, none of the Company, any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, of its Subsidiaries or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, Representative of any of the Company or any Company Subsidiary to, its Subsidiaries shall directly or indirectly (iA) initiate, solicit, initiateseek or knowingly encourage or support any inquiries, knowingly encourageproposals or offers that constitute or may reasonably be expected to lead to, knowingly induce a Company Acquisition Proposal (as defined below), (B) engage or participate in, or knowingly facilitate, any discussions or negotiations regarding, or furnish or disclose non-public any nonpublic information to any Person in furtherance ofconnection with, any inquiries, proposals or offers that constitute, or may reasonably be expected to lead to, a Company Takeover Acquisition Proposal, 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 the 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 adoption and approval of this Agreement by the Company Stockholders pursuant to the Company Stockholder Written Consent, the Company may take the following actions in response to an unsolicited bona fide written Company Acquisition Proposal received after the date of this Agreement that the Board of Directors of the Company has determined, in good faith, after consultation with its outside counsel and independent financial advisors, constitutes, or any inquiry or proposal that would reasonably be expected to result in or lead to to, a Company Takeover Proposal, Superior Offer: (ii1) enter into any agreement with respect furnish nonpublic information regarding the Company to any the third party making the Company Takeover Acquisition Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(aa “Company Qualified Bidder”) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee (2) engage in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any 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 copy of such confidentiality agreement shall promptly, and in any event within twenty-four (24) hours, be provided to Orion for informational purposes only), (x) the Company Takeover Proposal contemporaneously supplies to Orion any such nonpublic information or (iv) furnish or disclose access to any person such nonpublic information to the extent it has not been previously provided or made available to Orion, (y) neither the Company nor any non-public information regarding Subsidiary or Representative of the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; providedits Subsidiaries has breached this Section 4.5, however, that, prior to obtaining and (z) the Required Company Shareholder Approvals, Board of Directors of the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (faith, after consultation with its outside legal counsel and financial advisor) constitutesadvisors, or could reasonably that taking such actions would be expected required to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach comply with the fiduciary duties of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Board of Directors of the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable LawLaws. Without limiting the generality of the foregoing, it is agreed the Company acknowledges and agrees that any violation of any of the restrictions set forth in this Section 7.02(a) the preceding sentence by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware Subsidiaries, whether or (ii) not such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause purporting to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or act on behalf of the Company or any Company Subsidiary and (Cof its Subsidiaries, shall be deemed to constitute a breach of this Section 4.5(a)(i) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (OvaScience, Inc.)
No Solicitation by the Company. (ai) The From the date of this Agreement until the earlier of the Effective Time or the date of termination of this Agreement pursuant to Section Table of Contents 6.1 or 6.2(a), the Company shall not, nor shall it authorize or direct permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or direct knowingly permit any officer, director or employee of, of or any investment banker, attorney, accountant or other advisor, agent advisor or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary of its Subsidiaries to, directly or indirectly (iA) solicit, initiate, initiate or knowingly encourage, knowingly induce or knowingly facilitatetake any other action designed to, or furnish or disclose non-public information in furtherance of, any Company Takeover Proposal or any inquiry or proposal that would could reasonably be expected to result in facilitate, any inquiries or offers with respect to, or that reasonably may be expected to lead to a to, the submission of any Company Takeover Proposal, (iiB) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (ivC) furnish or disclose to any person provide any non-public information regarding the Company or any Company Subsidiary with respect and its Subsidiaries to any Company Takeover Proposal third party or engage in any inquiry negotiations or proposal that would reasonably be expected to result substantive discussions in or lead to a connection with any Company Takeover Proposal; provided, however, that, that prior to obtaining receipt of the Required Company Shareholder ApprovalsApproval, the Company and its Representatives may, in response to a bona fide written 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 (acting on the recommendation of the Special Committee) Directors determines in good faith (faith, after consultation with its outside legal counsel and its financial advisor) constitutesadvisors, or that such actions could reasonably be expected to result in or lead to, a Company Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the The Company shall, and shall cause each Company Subsidiary and shall direct of its and their Representatives Subsidiaries to, (A) immediately cease and cause to be terminated all 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 person (other than Parent and its Representatives) Persons conducted prior to the date of this Agreement heretofore with respect to a any of the foregoing and, subject to the terms of any applicable confidentiality agreements between such Persons and the Company Takeover Proposal or any inquiry 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 their officers, directors, employees, investment bankers, attorneys, accountants or other advisors or representatives may solicit proposals, enter into agreements and take any other action necessary or desirable to enable the Company or its Subsidiaries to dispose of their interests in each of the Excluded Assets, and no inquiry, proposal that would reasonably be expected to result in or lead to offer from any Person with respect solely thereto shall constitute a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
Appears in 1 contract
No Solicitation by the Company. (a) The Company shall notFrom the date of this Agreement until the Effective Time or, nor shall it authorize or direct any Company Subsidiary toif earlier, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) ofthe termination of this Agreement in accordance with its terms, the Company shall not (whether directly or any indirectly through advisors, agents or other intermediaries), and the Company Subsidiary shall cause its and its subsidiaries' respective officers, directors, advisors, representatives and other agents not to, directly or indirectly indirectly, (i) solicit, initiate, initiate or knowingly encourage, knowingly induce or knowingly take any other action to facilitate, any inquiries or furnish the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate or engage in substantive discussions or negotiations with, or disclose or provide any non-public information in furtherance ofrelating to the Company or its subsidiaries or afford access to the properties, books or records of the Company or its subsidiaries to, any Company Takeover person (including any "PERSON" as defined in Section 13(d)(3) of the Exchange Act) that has made an Acquisition Proposal or with or to any inquiry Person in contemplation of an Acquisition Proposal or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (iiiii) enter into any agreement with respect or agreement in principle providing for or relating to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal; provided, however, thatthat if and only if (A) a person has submitted an unsolicited written Acquisition Proposal (under circumstances in which the Company has complied with its obligations under this Section 5.5(a)) to the Company's Board of Directors, prior (B) the Company's Board of Directors believes in good faith, based on such matters as it deems relevant, including the advice of the Company's financial advisor, that such Acquisition Proposal is a Superior Proposal and (C) the Company's Board of Directors determines in good faith, based on such matters as it deems relevant, including consultation with the Company's outside legal counsel, that engaging in such negotiations or discussions or providing such information is required to obtaining satisfy the Required fiduciary duties of the Board of Directors of the Company Shareholder Approvalsunder Delaware Law, then the Company may furnish information to such person with respect to the Company and its Representatives subsidiaries (so long as the Company has entered into a customary confidentiality agreement with such party) and participate in negotiations and discussions with such person regarding such Acquisition Proposal; provided further that, after the third business day following Parent's receipt of written notice advising Parent that the Company's Board of Directors is prepared to accept such Superior Proposal, which notice specifies the material terms and conditions of such Superior Proposal and identifies the person making such Superior Proposal, the Board of Directors of the Company may, in response to a bona fide written Company Takeover Superior Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did was not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to solicited by the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement which did not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be otherwise result from a breach of this Section 7.02(a) by 5.5(a), terminate this Agreement, if the Company unless (i) such violation is committed without the knowledge Board of Directors of the Company and determines in good faith, based on such matters as it deems relevant, including consultation with the Company's outside legal counsel, that it is required to do so in order to comply with its fiduciary duties to the Company's stockholders under Delaware Law, and, concurrently with such termination, causes the Company uses its reasonable best efforts to promptly cure such violation once pay the fee payable pursuant to Section 9.5(a) hereof by reason thereof. Nothing contained in this Agreement shall prohibit the Company or the Company's Board of Directors from taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any disclosure required by applicable law or, in the case of the Company's Board of Directors, making any other disclosure to the Company's stockholders that the Company's Board of Directors determines in good faith is required to be made aware or (ii) such Representative is also a Representative to satisfy the fiduciary duties of Parentthe Company's Board of Directors under Delaware Law. Upon execution of this Agreement, the The Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated and shall cause its affiliates and subsidiaries and its or their respective officers, directors, employees, representatives or agents, to terminate all existing discussions or negotiations negotiations, if any, with any person (other than Parent and its Representatives) persons conducted prior to the date of this Agreement heretofore with respect to a Company Takeover Proposal to, or any inquiry or proposal that would could reasonably be expected to result in or lead to a Company Takeover to, an Acquisition Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Computer Associates International Inc)
No Solicitation by the Company. (ai) The Unless and until this Agreement is terminated in accordance with the provisions of Article VII, without the prior written consent of Parent, neither the Company nor any Representative of the Company shall not, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary to, directly or indirectly (iA) initiate, solicit, initiateseek or knowingly encourage or support any inquiries, knowingly encourageproposals or offers that constitute or may reasonably be expected to lead to, knowingly induce an Acquisition Proposal, (B) engage or participate in, or knowingly facilitate, any discussions or negotiations regarding any inquiries, proposals or offers that constitute, or may reasonably be expected to lead to, an Acquisition Proposal, (C) furnish to any Person other than Parent or disclose Merger Sub any non-public information that could reasonably be expected to be used for the purposes of formulating any Acquisition Proposal, (D) 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 furtherance ofprinciple or other similar type of agreement relating to an Acquisition Proposal, or enter into any agreement or agreement in principle requiring the Company Takeover 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 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 any inquiry 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 proposal that would reasonably be expected to result in or lead to to, a Company Takeover Superior Proposal, : (ii1) enter into any agreement with respect furnish nonpublic information regarding the Company to any the Person making the Acquisition Proposal to the Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(aa “Company Qualified Bidder”) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee (2) engage in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary Qualified Bidder and its representatives with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover such Acquisition Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, 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 its Representatives maycontaining 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 response any event within twenty-four (24) hours, be provided to a bona fide written Parent for informational purposes only), (x) the Company Takeover Proposal that 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 (acting on the recommendation of the Special Committee) determines in good faith (faith, after consultation with its outside legal counsel and financial advisor) constitutesadvisors, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide take such information or engage in such negotiations or discussions actions would be inconsistent with its the fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)Board under applicable Laws.
Appears in 1 contract
No Solicitation by the Company. (a) The From the date of this Agreement through the Effective Time, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or direct permit any officerof its or its Subsidiaries’ directors, director officers or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company retained by it or any Company Subsidiary of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitateencourage (including by way of furnishing information or assistance), or furnish take any other action designed to facilitate or disclose non-public information in furtherance ofthat is likely to result in, any Company Takeover Proposal inquiries or the making of any inquiry or proposal that would constitutes, or is reasonably be expected likely to result in or lead to a Company Takeover to, any Acquisition Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Acquisition Proposal or (iv) furnish make or disclose authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, extent that, prior to obtaining (i) the Required Company Shareholder Approvalsapproval of this Agreement by the Company’s shareholders has not occurred, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that (ii) the Company Board (acting on the recommendation of the Special Committee) reasonably determines in good faith (faith, after consultation with its outside legal counsel and financial advisor) constitutescounsel, or could reasonably that such action would be expected required in order for directors of the Company to result comply with their respective fiduciary duties under applicable law in or lead toresponse to a bona fide, a Superior Proposal, and which Company Takeover written Acquisition Proposal did not result from a material breach solicited in violation of this Section 7.02(a6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), subject to compliance with Section 7.02(c), the Company may (x1) furnish information with respect to the Company and the Company Subsidiaries to the person any Person making such Company Takeover an Acquisition Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making (as determined by the Company Takeover Proposal after consultation with its outside legal counsel) on terms substantially similar to, and its Representatives than no less favorable to the Confidentiality Agreement Company than, the terms contained in any such agreement between the Company and Parent, (an “Acceptable Confidentiality Agreement”) and (y2) participate in discussions or negotiations with the person making regarding such Company Takeover an Acquisition Proposal and its Representatives, (3) authorize any statement or recommendation in each case if support of such an Acquisition Proposal and so long as the Company Board (acting on the recommendation of the Special Committee) determines effect a Change in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable LawRecommendation. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).42
Appears in 1 contract
Samples: Agreement and Plan of Merger (Banknorth Group Inc/Me)
No Solicitation by the Company. (a) The From and after the date of this Agreement, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or direct knowingly permit any officer, director or employee of, of or any investment banker, attorney, accountant or other advisor, agent advisor or representative (collectively, the “Representatives”) of, the Company or any Company Subsidiary of its Subsidiaries to, directly or indirectly (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitate, or furnish or disclose non-public information in furtherance of, intentionally encourage the submission of any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into any letter of intent, memorandum of understanding or agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iviii) furnish or disclose to any person other than informing persons of the existence of this Section 5.2, provide any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal third party or engage in any inquiry negotiations or proposal that would reasonably be expected to result substantive discussions in or lead to a connection with any Company Takeover Proposal; provided, however, that, that prior to obtaining the Required Company receipt of Shareholder ApprovalsApproval, the Company and its the Representatives of the Company may, in response to a bona fide written Company Takeover Proposal that was not solicited, initiated or knowingly or intentionally encouraged by the Company Board (acting on the recommendation or a Representative of the Special Committee) determines Company in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a5.2(a), subject make such inquiries as may be necessary to compliance with Section 7.02(c), (x) furnish information with respect to inform itself of the Company proposed terms and details of the Company Subsidiaries to the person making such unsolicited Company Takeover Proposal and, if the Company Board determines in good faith, after consultation with counsel and its Representatives (provided financial advisor, that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making following actions could result in the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such becoming a Company Takeover Proposal and its RepresentativesSuperior Proposal, in each case if and so long as may provide any non-public information regarding the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information any third-party or engage in such any negotiations or substantive discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or such person regarding any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of ParentTakeover Proposal. Upon execution of this Agreement, the The Company shall, and shall cause each Company Subsidiary and shall direct of its and their Representatives Subsidiaries to, (A) immediately cease and cause to be terminated all any existing activities, discussions or negotiations with by the Company, any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf Subsidiary of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted Representative of the Company, with any parties conducted heretofore with respect to any person or its Representatives (other than Parent and its Representatives)of the foregoing.
Appears in 1 contract
No Solicitation by the Company. (a) The Company shall not, nor shall it permit any of its subsidiaries to, or authorize or direct permit any Company Subsidiary todirector, nor shall it authorize or direct any officer, director officer or employee of, of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor, agent advisor or representative (collectively, “Representatives”) of, of the Company or any of its subsidiaries (collectively, the “Company Subsidiary Representatives”) to, directly or indirectly indirectly, (i) solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitate, or furnish or disclose non-public information in furtherance of, encourage any Company Takeover Proposal (as defined below) or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into into, continue or otherwise participate in any agreement discussions or negotiations regarding, or furnish to any Person any information or data or afford access to the properties, books or records of the Company or any of its subsidiaries with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from Proposal, or otherwise facilitate any person making an effort or attempt to make or implement any Company Takeover for the purpose of the Company Board and the Special Committee Proposal, in each case informing itself about such other than a Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposalmade by Parent; provided, however, that, at any time prior to obtaining acceptance of the Required Company Shareholder ApprovalsShares pursuant to the Offer, the Company and its Representatives Board of Directors may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) Directors determines in good faith (faith, after consultation with its outside legal counsel and financial advisor) constitutes, constitutes or could reasonably be expected to result in or lead to, to a Superior Proposal, and which Company Takeover Proposal did not result from that is more favorable to the stockholders of the Company (taking into account the Person making the Company Takeover Proposal, the 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 of Directors) than the proposal evidenced by this Agreement (a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c“Company Competitive Proposal”), (x) furnish information with respect to the Company and the Company Subsidiaries its subsidiaries to the person Person making such this Company Takeover Competitive Proposal (and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such personrepresentatives) pursuant to a customary confidentiality agreement not materially (which confidentiality agreement contains terms that are equivalent to, and in no respect less restrictive favorable to the Company than, the terms of the person making Confidentiality Agreement, dated August 30, 2002, between Parent and the Company Takeover Proposal and its Representatives than (as it may be amended from time to time, the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) )), and (y) participate in discussions or negotiations with the person Person making such this Company Takeover Competitive Proposal (and its Representativesrepresentatives) regarding this Company Competitive Proposal, in each case if and so long as provided that (i) the Company Board (acting on the recommendation of the Special Committee) Directors determines in good faith faith, after consultation with its outside legal counsel counsel, that the failure to provide such information or engage in such negotiations or discussions negotiation, would be inconsistent with its the Board of Directors’ fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company Law and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) a copy of all the information provided to such Representative Person is also a Representative of delivered simultaneously to Parent if it has not previously been furnished or made available to Parent. Upon Promptly after the execution of this Agreement, the Company shallwill, and shall will cause each of its subsidiaries and each of the Company Subsidiary and shall direct its and their Representatives to, (Ai) immediately cease and cause to be terminated terminate all discussions or negotiations with all third parties regarding any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, and (Bii) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to prompt return or destroy destruction of all confidential information heretofore furnished relating to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access of its subsidiaries previously granted furnished to any person or its Representatives (other than Parent and its Representatives)such third parties.
Appears in 1 contract
No Solicitation by the Company. (a) The Company shall, and shall not, nor shall it authorize or direct any Company Subsidiary cause its Subsidiaries and Representatives to, nor 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 Representatives) to any physical or electronic data room relating to a possible Company Acquisition Proposal. During the Pre-Closing Period, the Company shall it authorize not directly or direct indirectly, and shall cause its Subsidiaries not to, and shall use its reasonable best efforts to cause any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, Representative of the Company or any Company Subsidiary of its Subsidiaries not to, directly or indirectly indirectly, (i) solicit, initiate, knowingly encouragefacilitate, knowingly encourage (including by way of furnishing confidential information), or induce or knowingly facilitatetake any other action that could reasonably be expected to lead to any inquiries, proposals or indications of interest that constitute the making, submission, or furnish or disclose non-public information in furtherance of, announcement of any Company Takeover Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any Person in connection with or in response to a Company Acquisition Proposal or any an inquiry or proposal indication of interest that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal, (iiiii) enter into engage in discussions or negotiations with any agreement Person with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iiiiv) approve, endorse, or recommend any Company Acquisition Proposal or (v) enter into, participate in into any letter of intent or continue similar document or any discussions Contract contemplating or negotiations with respect otherwise relating to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover ProposalAcquisition Transaction; provided, however, that, that prior to obtaining the adoption of this Agreement by the Required Company Shareholder ApprovalsStockholder Vote, this Section 5.5(a) shall not prohibit the Company from furnishing nonpublic information regarding the Company and its Representatives maySubsidiaries to, or entering into discussions with, any Person in response to a written, bona fide written Company Takeover Acquisition Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutesis, or could is reasonably be expected likely to result in or lead toin, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect that is submitted to the Company by such Person (and the Company Subsidiaries not withdrawn prior to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive furnishing of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations discussions) if (1) the Company, its Subsidiaries or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that their respective Representatives shall not have violated any violation of the restrictions set forth in this Section 7.02(a5.5(a), (2) by any Representative of 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 any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) entering into discussions with, such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this AgreementPerson, the Company shall, gives Parent written notice of the identity of such Person and shall cause each Company Subsidiary and shall direct its and their Representatives of the Company’s intention to furnish nonpublic information to, (A) immediately cease and cause to be terminated all or enter into discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposalwith, such Person, (B4) promptly request each person (other than Parent and its Representatives), if any, that has the Company receives from such Person an executed a confidentiality agreement in containing limitations on the last 6 months to return or destroy all use and disclosure of nonpublic written and oral information heretofore furnished to such person or its Representatives Person by or on behalf of the Company 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 directors, executive officers or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted 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 person or of its Representatives (other than Parent and 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) The Company shall not, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) ofDuring the Pre-Closing Period, the Company shall not directly or indirectly, and shall not authorize or permit any of the other Acquired Corporations or any Company Subsidiary to, Representative of any of the Acquired Corporations directly or indirectly to, (i) take any action to solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitateseek to facilitate the making, submission or furnish or disclose non-public information in furtherance of, announcement of any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal, (ii) enter into furnish any agreement nonpublic information regarding any of the Acquired Corporations to any Person (other than Parent or Merger Sub) in connection with or in response to a Company Acquisition Proposal or an inquiry or indication of interest that the Company reasonably believes could be expected to lead to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iiiiv) approve, endorse or recommend any Company Acquisition Proposal, or (v) enter into, participate in into any letter of intent or continue similar document or any discussions Contract contemplating or negotiations with respect otherwise relating to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover ProposalAcquisition Transaction; provided, however, thatthat this Section 4.3 shall not prohibit (A) the Company, prior to obtaining or the Required Company Shareholder ApprovalsBoard of Directors of the Company, from furnishing nonpublic information regarding the Company and its Representatives mayAcquired Corporations to, or entering into discussions or negotiations with, any Person in response to a bona fide written Company Takeover Proposal Superior Offer that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive nor any Representative of any of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that Acquired Corporations shall have violated any violation of the restrictions set forth in this Section 7.02(a4.3, (2) by any Representative the Board of Directors of the Company or any concludes in good faith, after consultation with its outside legal counsel, that such action with respect to such Company Subsidiary shall be deemed Superior Offer is required to be a breach comply with the fiduciary duties of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge Board of Directors of the Company to the Company shareholders under applicable Legal Requirements, and (3) the Board of Directors determines in good faith, after consultation with its outside legal counsel, that taking such action would be reasonably likely to lead to the consummation of a Company Superior Offer, (4) the Company gives Parent prompt written notice (in any event, within 24 hours of receipt of any Company Acquisition Proposal) of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company uses its reasonable best efforts to promptly cure receives from such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has Person an executed a confidentiality agreement in containing customary limitations on the last 6 months to return or destroy use and disclosure of all nonpublic written and oral information heretofore furnished to such person Person or its any of such Person’s Representatives by or on behalf of the Company, and (5) the Company furnishes such nonpublic information to such Person and to Parent at substantially the same time (to the extent such nonpublic information has not been previously furnished by the Company to Parent); or (B) the Company from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Company Subsidiary Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and (C) immediately terminate all physical and electronic data room access previously granted agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any person or its Representatives (other than Parent and its Representatives)of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company.
Appears in 1 contract
No Solicitation by the Company. (a) The Company and its Subsidiaries and each of their respective 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 any of its Subsidiaries) shall immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to any Acquisition Proposal. From the date of this Agreement through the Effective Time, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or direct permit any officerof its or its Subsidiaries’ directors, director officers or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company retained by it or any Company Subsidiary of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitateencourage (including by way of furnishing information or assistance), or furnish take any other action designed to facilitate or disclose non-public information in furtherance ofthat is likely to result in, any Company Takeover Proposal inquiries or the making of any inquiry or proposal that would constitutes, or is reasonably be expected likely to result in or lead to a Company Takeover to, any Acquisition Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Acquisition Proposal or (iv) furnish make or disclose to authorize any person statement or recommendation in support of any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal; provided, however, that if, and only to the extent that, prior (A) the approval of the Merger Agreement by the Company’s stockholders has not occurred and (B) the Company Board determines in good faith, after consultation with its outside legal and financial advisors, that such actions would be required in order for directors of the Company to obtaining the Required Company Shareholder Approvalscomply with their respective fiduciary duties under applicable law, the Company and its Representatives may, in response to a bona fide fide, written Company Takeover Acquisition Proposal not solicited in violation of this Section 6.06(a) that the Company Board (acting on the recommendation of the Special Committee) determines believes in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, is or could would be reasonably be expected likely to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to providing twenty four (24) hour prior written notice of its decision to take such action to Parent and identifying the Person making the proposal and all the material terms and conditions of such proposal (the “Company Notice”) and compliance with Section 7.02(c6.06(b), following delivery of the Company Notice (x1) furnish information with respect to the Company and the Company Subsidiaries to the person any Person making such Company Takeover a Superior Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making (as determined by the Company Takeover Proposal and after consultation with its Representatives outside counsel) on terms no more favorable to such Person than the Confidentiality Agreement terms contained in any such agreement between the Company and Parent, (an “Acceptable Confidentiality Agreement”) and (y2) participate in discussions or negotiations with the person making regarding such Company Takeover Superior Proposal and its Representatives(3) authorize any statement or recommendation in support of such Superior Proposal and withhold, in each case if and so long as the Company Board (acting on withdraw, amend or modify the recommendation of the Special Committee) determines referred in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable LawSection 6.02. Without limiting the foregoing, it is agreed that any Any violation of the foregoing restrictions set forth in this Section 7.02(a) by any Representative of the Company’s representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any Company Subsidiary otherwise, shall be deemed to be a breach of this Section 7.02(a) Agreement by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Banknorth Group Inc/Me)
No Solicitation by the Company. (a) The From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 9.01, the Company shall not, agrees that neither the Company nor shall it authorize or direct any Company Subsidiary to, of its Subsidiaries nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, of the 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 Subsidiary or any of its Subsidiaries not to, directly or indirectly (i) solicitindirectly, initiate, knowingly encouragesolicit, knowingly induce encourage or knowingly facilitate, otherwise facilitate (including by way of furnishing information or furnish or disclose non-public information in furtherance of, assistance) any Company Takeover Acquisition Proposal or any inquiry or proposal inquiries that would may reasonably be expected to result in or lead to a an Acquisition Proposal. The Company Takeover further agrees that neither the Company nor any of its Subsidiaries nor any of the 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, 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) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose Board of Directors of the Company Board and shall have concluded in good faith that such Acquisition Proposal (x) in the Special Committee case of that described in each case informing itself about such Company Takeover Proposal and the person making it)clause (B) above would, (iii) enter intoif consummated, participate in or continue any discussions or negotiations with respect to any Company Takeover constitute a Superior Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives mayy), in response to a bona fide written Company Takeover Proposal that the Company Board case described in clause (acting on the recommendation of the Special CommitteeC) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or above could reasonably be expected to result in or lead to, constitute a Superior Proposal, and which Company Takeover Proposal did not result from a material breach (iii) the Board of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to Directors of the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines shall have determined in good faith after consultation with its on the basis of advice of outside legal counsel that the failure such action is necessary for such Board of Directors to provide such information or engage act in such negotiations or discussions would be inconsistent a manner consistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that Law and (iv) prior to providing any violation of the restrictions set forth information or data to any Person in this Section 7.02(a) connection with an Acquisition Proposal by any Representative 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 Company Parent of such inquiries, proposals or offers received by, or any Company Subsidiary shall be deemed such discussions or negotiations sought to be a breach initiated or continued with, any of this Section 7.02(a) by its representatives indicating, in connection with such notice, the Company unless (i) name of such violation is committed without the knowledge of the Company Person and the material terms and conditions of any proposals or offers. The Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) agrees that it will immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any person (other than Parent and its Representatives) parties conducted prior to the date of this Agreement heretofore with respect to a Company Takeover Proposal any Acquisition Proposal. Nothing in this Section 6.03 shall permit the Parent or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and to terminate this Agreement (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representativesexcept as specifically provided in Article IX).
Appears in 1 contract
No Solicitation by the Company. (a) The From and after the date of this Agreement, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary toof its Subsidiaries, nor shall it authorize or direct permit any officer, director or employee of, of or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, the “Representatives”) of, the Company or any Company Subsidiary of its Subsidiaries to, directly or indirectly (i) solicit, initiate, knowingly encourage, knowingly induce facilitate or knowingly facilitate, or furnish or disclose non-public information in furtherance of, encourage the submission of any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement other than a confidentiality agreement in accordance with this Section 7.02(a5.2 ) and except that the Company may ascertain facts from or resolve, agree or propose to take any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)actions, or (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person provide any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal third party or engage in any inquiry negotiations or proposal that would reasonably be expected to result discussions in connection with, or lead to a otherwise cooperate in any way with, any Company Takeover Proposal; provided, however, that, that prior to obtaining the Required Company Shareholder Approvalsreceipt of the Stockholder Approval, the Company and its the Representatives of the Company may, in response to a bona fide written Company Takeover Proposal that was not solicited by the Company or its Subsidiaries or any of its or their Representatives and did not otherwise result from a breach of this Section 5.2, if the Company Board (acting on the recommendation of the Special Committee) determines in good faith (faith, after consultation with its outside legal counsel and its financial advisor) constitutes, or could that the following actions would reasonably be expected to result in or lead to, the Company Takeover Proposal becoming a Company Superior Proposal, and which provide any non-public information regarding the Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person Person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement substantially similar to, and not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than such Person than, the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) provided that such confidentiality agreement and (y) participate in discussions or negotiations any related agreement shall not contain any provision calling for a right to negotiate exclusively with the person Person making such Company Takeover Proposal and its Representatives, in each case if and so long as or having the effect of prohibiting the Company Board (acting from satisfying any of its obligations under this Agreement, provided, further, that all information provided to a third party under this Section 5.2 is provided or made available on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure a prior or substantially concurrent basis to provide Parent and Merger Sub if such information has not previously been provided to Parent or Merger Sub) or engage in such any negotiations or discussions would 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 inconsistent terminated any existing activities, discussions or negotiations by the Company, any Subsidiary of the Company or any Representative of the Company or its Subsidiaries with any parties (other than Parent and Merger Sub) conducted heretofore with respect to any of the foregoing and request from each Person that has executed a confidentiality agreement with the Company the prompt return or destruction of all confidential information previously furnished to such Person or its fiduciary duties under applicable LawRepresentatives and terminate access by each such Person and its Representatives to any online or other data rooms containing any information in respect of the Company or any of its Subsidiaries. Without limiting the foregoing, it It is agreed understood that any violation of the restrictions set forth in this Section 7.02(a5.2(a) by any Representative of the Company or any Company Subsidiary of its Subsidiaries shall be deemed to be a breach of this Section 7.02(a5.2(a) by the Company. Neither the Company unless (i) such violation is committed without nor the knowledge Company Board shall approve, or take any action to render Section 203 of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware DGCL or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives any similar takeover statute inapplicable to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (Company Takeover Proposal other than Parent and its Representatives) conducted prior to the date of this Agreement in connection with entering into a definitive agreement with respect to a Company Takeover Superior Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representativesthe extent permitted under Section 5.2(b), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
Appears in 1 contract
Samples: Agreement and Plan of Merger (MTC Technologies Inc)
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct permit any Company Subsidiary toof its Subsidiaries, nor shall it authorize any of its or direct any officertheir respective directors, director or employee ofofficers, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, retained by the Company or any Company Subsidiary in connection with the transactions contemplated by this Agreement (collectively, "Representatives") to, directly or indirectly through another person, (i) solicit, initiate, cause, knowingly encourage, knowingly induce or knowingly facilitate, any inquiries or furnish the making of any proposal that constitutes or disclose non-public information in furtherance of, any Company is reasonably likely to lead to a Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Proposal Proposal, or (iv) furnish or disclose to any person any non-public information regarding the Company in connection with or in furtherance of any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) the preceding sentence by any Representative of the Company or any Company Subsidiary of its Subsidiaries shall be deemed to be a breach of this Section 7.02(a5.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of ParentCompany. Upon execution of this Agreement, the The Company shall, and shall cause each Company Subsidiary its Subsidiaries and shall direct instruct its and their Representatives to, (A) 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. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval (other than and in no event after obtaining such Company Shareholder Approval), in response to an unsolicited bona fide written Takeover Proposal made after the date hereof that the Company Board determines in good faith (after receiving advice of a financial advisor of nationally recognized reputation, which may be Xxxxx & Steers Capital Advisors, LLC, and of its outside counsel) constitutes or is reasonably likely to constitute a Superior Proposal, the Company may, if the Company Board determines in good faith (after receiving advice of its outside counsel) that it is necessary to do so in order to comply with its fiduciary duties to the shareholders of the Company under applicable Law, and subject to compliance with Section 5.02(c) and after giving Parent two business days written notice of such determination, (A) furnish information with respect to the Company and its Subsidiaries to the person making such Takeover Proposal (and its Representatives) conducted pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement, provided that all such oral or written information (to the extent that such information has not been previously provided to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrent with the date of this Agreement with respect time it is provided or made available to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposalsuch person, as the case may be, and (B) promptly request each participate in discussions or negotiations with the person making such Takeover Proposal (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to ) regarding such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)Takeover Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (American Retirement Corp)
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) ofDuring the Pre-Closing Period, the Company shall not directly or indirectly, and shall not authorize or permit any of the other Acquired Corporations or any Company Subsidiary to, Representative of any of the Acquired Corporations directly or indirectly to, (i) take any action to solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitateseek to facilitate the making, submission or furnish or disclose non-public information in furtherance of, announcement of any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal, (ii) enter into furnish any agreement nonpublic information regarding any of the Acquired Corporations to any Person (other than Parent or Merger Sub) in connection with or in response to a Company Acquisition Proposal or an inquiry or indication of interest that the Company reasonably believes could be expected to lead to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iiiiv) approve, endorse or recommend any Company Acquisition Proposal, or (v) enter into, participate in into any letter of intent or continue similar document or any discussions Contract contemplating or negotiations with respect otherwise relating to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover ProposalAcquisition Transaction; provided, however, thatthat this Section 4.3 shall not prohibit (A) the Company, prior to obtaining or the Required Company Shareholder ApprovalsBoard of Directors of the Company, from furnishing nonpublic information regarding the Company and its Representatives mayAcquired Corporations to, or entering into discussions or negotiations with, any Person in response to a bona fide written Company Takeover Proposal Superior Offer that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive nor any Representative of any of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that Acquired Corporations shall have violated any violation of the restrictions set forth in this Section 7.02(a4.3, (2) by any Representative the Board of Directors of the Company or any concludes in good faith, after consultation with its outside legal counsel, that such action with respect to such Company Subsidiary shall be deemed Superior Offer is required to be a breach comply with the fiduciary duties of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge Board of Directors of the Company to the Company shareholders under applicable Legal Requirements, and (3) the Board of Directors determines in good faith, after consultation with its outside legal counsel, that taking such action would be reasonably likely to lead to the consummation of a Company Superior Offer, (4) the Company gives Parent prompt written notice (in any event, within 24 hours of receipt of any Company Acquisition Proposal) of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company uses its reasonable best efforts to promptly cure receives from such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has Person an executed a confidentiality agreement in containing customary limitations on the last 6 months to return or destroy use and disclosure of all nonpublic written and oral information heretofore furnished to such person Person or its any of such Person's Representatives by or on behalf of the Company, and (5) the Company furnishes such nonpublic information to such Person and to Parent at substantially the same time (to the extent such nonpublic information has not been previously furnished by the Company to Parent); or (B) the Company from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Company Subsidiary Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and (C) immediately terminate all physical and electronic data room access previously granted agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any person or its Representatives (other than Parent and its Representatives)of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cylink Corp /Ca/)
No Solicitation by the Company. (a) The From the date of this Agreement until the Closing Date, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or direct permit any officerof its directors, director officers or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company retained by it or any Company Subsidiary of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate, knowingly encourage, knowingly induce solicit or knowingly facilitate, or furnish or disclose initiate (including by way of furnishing non-public information information), or take any other action designed to solicit or initiate, any inquiries or the making of any proposal which constitutes either a Company Takeover Proposal or an Alternative Proposal or (ii) participate in furtherance of, any discussions or negotiations regarding any Company Takeover Proposal or any inquiry or proposal Alternative Proposal. Notwithstanding the foregoing, however, if the Special Committee determines in good faith, after consultation with outside counsel, that would reasonably be expected it is necessary to result do so in or lead order to act in a manner consistent with its fiduciary duties to the Company's shareholders under applicable Law, the Company Takeover Proposalmay, (ii) enter into any agreement with respect in response to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about good faith believes is reasonably likely to lead to delivery of a Company Superior Proposal, which Company Superior Proposal was not solicited by it and does not otherwise result from a breach of this Section 4.10 and, subject to providing prior notice of any such Company Takeover Proposal and the person making it), (iii) enter into, participate in proposal or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any such request for non-public information regarding and of its decision to take such action to the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c)Purchaser, (x) furnish information with respect to the Company and the Company its Subsidiaries to the any person inquiring about or making such a Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making (as determined by the Company Takeover Proposal and after consultation with its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”outside counsel) and (y) participate in discussions or negotiations with the person making regarding such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in as the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)case may be.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fidelity National Financial Inc /De/)
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct permit any Company Subsidiary to, nor shall it authorize or direct permit any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, of the Company or any Company Subsidiary to, directly or indirectly (i) solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitate, or furnish or disclose non-public information in furtherance of, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a5.02(a)) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), or (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal person (other than the Company’s Representatives) regarding, or (iv) furnish or disclose to any person any non-public information regarding the with 42 respect to, or otherwise cooperate in any way with any person (whether or not a person making a Company or any Company Subsidiary Takeover Proposal) with respect to to, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on or the recommendation of the Special Committee) Transaction Committee determines in good faith (after consultation with its outside legal counsel and financial advisor) is bona fide and constitutes, or could is reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal was unsolicited, was made after the date of this Agreement and did not otherwise result from a material breach of this Section 7.02(a5.02(a), subject to compliance with Section 7.02(c5.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the person (or group of persons) making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on or the recommendation of the Special Transaction Committee) , as applicable, determines in good faith after consultation with its outside legal counsel that the failure to provide providing such information or engage engaging in such negotiations or discussions would is reasonably likely to be inconsistent required for the directors to comply with its their fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a5.02(a) by any Representative or affiliate of the Company or any Company Subsidiary, whether or not such person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 7.02(a5.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of ParentCompany. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives)person, if any, that has executed a confidentiality agreement in the last 6 12 months in respect of a Company Takeover Proposal to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately reasonably promptly terminate all physical and electronic data room access previously granted to any person or its Representatives Representatives. (b) Neither the Company Board nor the Transaction Committee or any other committee thereof will (i) (A) withhold or withdraw (or modify or qualify in any manner adverse to Parent), or propose publicly to withhold or withdraw (or modify or qualify in any manner adverse to Parent), the Company Recommendation or (B) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Company Takeover Proposal (any action in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, or allow the Company or any of the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint 43 venture agreement, alliance agreement, partnership agreement or other similar Contract or arrangement (other than an Acceptable Confidentiality Agreement pursuant to Section 5.02(a)) constituting or relating to, or that is intended to or would reasonably be expected to result in or lead to, any Company Takeover Proposal, or requiring, or that would reasonably be expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with, the Transactions, or requiring, or that would reasonably be expected to cause, the Company to fail to comply with this Agreement. Notwithstanding the foregoing or anything else to the contrary herein, at any time prior to obtaining the Required Company Shareholder Approvals, the Company Board or the Transaction Committee may make a Company Adverse Recommendation Change only if the Company Board or Transaction Committee, as applicable, determines in good faith, after consultation with its outside legal counsel and financial advisor and after giving effect to all of the adjustments to the terms of this Agreement that have been offered in writing by Parent in accordance with this Section 5.02(b), that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; provided, however, that neither the Company Board nor the Transaction Committee will be entitled to exercise its rights to make a Company Adverse Recommendation Change unless (x) the Company delivers to Parent a written notice (a “Company Notice”) advising Parent that the Company Board or the Transaction Committee, as applicable, intends to take such action and specifying the reasons therefor, including, in the case of a Superior Proposal, (A) the identity of the party making such Superior Proposal, (B) the material terms and conditions of the Superior Proposal that is the basis of the proposed action by the Company Board and (C) a copy of the most current version of any proposed definitive agreement(s) with respect to any such Superior Proposal and (y) at or after 5:00 p.m., New York City time, on the fourth Business Day following the day on which the Company delivered the Company Notice (it being understood that for purposes of calculating such four Business Days, the first Business Day will be the first Business Day after the date of such delivery), the Company Board or the Transaction Committee, as applicable, reaffirms in good faith (after consultation with its outside legal counsel and financial advisor) that (1) in the case of a Superior Proposal, such Company Takeover Proposal continues to constitute a Superior Proposal and (2) the failure to make a Company Adverse Recommendation Change would be inconsistent with its fiduciary duties under applicable Law (it being understood and agreed that any change in the financial terms or any other material amendment to the terms and conditions of such Superior Proposal will require a new Company Notice and a new two Business Day period (it being understood that any such two Business Day period will be calculated in the same manner as the initial four Business Day period)). In determining whether to make a Company Adverse Recommendation Change, the Company Board and the Transaction Committee will take into account any changes to the terms of this Agreement proposed in writing by Parent by 5:00 p.m., New York City time, on the last Business Day of the applicable four Business Day period or two Business Day period, as applicable, in response to a Company Notice, and if requested by Parent, the Company will, and will cause its Representatives to, engage in good faith negotiations with Parent and its RepresentativesRepresentatives to make such adjustments in the terms and conditions of this Agreement so that any Company Takeover Proposal would cease to constitute a Superior Proposal or that such failure to make a Company Adverse Recommendation Change would cease to be inconsistent with the Company Board’s or Transaction Committee’s, as applicable, fiduciary duties under applicable Law. Notwithstanding any Company Adverse Recommendation Change, if the Required Company Shareholder Approvals are obtained, the requirement that the Other Directors 44 (as defined in the Governance Agreement) have approved the Transactions for purposes of Section 2.07 of the Governance Agreement shall be deemed to have been satisfied. (c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.02, the Company shall promptly, and in any event within 24 hours, advise Parent in writing of any Company Takeover Proposal or any request for non-public information or inquiry that would reasonably be expected to result in, lead to or that contemplates a Company Takeover Proposal, the identity of the person making any such Company Takeover Proposal, request or inquiry and the material terms of any such Company Takeover Proposal, request or inquiry. The Company shall (i) keep Parent informed in all material respects on a reasonably current basis of the status, including any change to the material terms of, any such Company Takeover Proposal, and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of any draft definitive agreements or term sheets sent or provided to the Company from any third party in connection with any Company Takeover Proposal or sent or provided by the Company to any third party in connection with any Company Takeover Proposal. (d) Nothing contained in this Section 5.02 shall prohibit the Company from complying with Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act or from making any other disclosure to the holders of Company Capital Stock if, in the good-faith judgment of the Company Board or the Transaction Committee, after consultation with its respective outside legal counsel, failure so to disclose would be inconsistent with its obligations under applicable Law; provided, however, that (x) in no event shall the Company, the Company Board or the Transaction Committee or any other committee thereof take, or agree to take, any action prohibited by Section 5.02(b) and (y) any public disclosure made by or on behalf of the Company that refers to a Company Takeover Proposal will be deemed to be a Company Adverse Recommendation Change (including for purposes of Section 8.01(d)) unless the Company Board expressly reaffirms the Company Recommendation in such disclosure. (e) For purposes of this Agreement: “Company Takeover Proposal” means any inquiry, proposal or offer (whether or not in writing) with respect to any (i) tender offer or exchange offer, merger, amalgamation, arrangement, consolidation, share exchange, other business combination or similar transaction involving the Company or any Company Subsidiary, pursuant to which any person or group of persons (or affiliates thereof) would acquire 25% or more of the consolidated revenues, net income, earnings before interest expense, taxes, depreciation and amortization (“EBITDA”) or assets of the Company and the Company Subsidiaries, taken as a whole, (ii) sale, lease, contribution or other disposition, directly or indirectly (including by way of merger, consolidation, share exchange, other business combination, partnership, joint venture, sale of capital stock of or other equity interests in a Company Subsidiary or otherwise) of any business or assets of the Company or the Company Subsidiaries representing 25% or more of the consolidated revenues, net income, EBITDA or assets of the Company and the Company Subsidiaries, taken as a whole, (iii) issuance, sale or other disposition, directly or indirectly, to any person or group of persons (or affiliates or stockholders thereof) of securities (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such securities) 45 representing 25% or more of the voting power of the Company, (iv) transaction in which any person or group of persons (or affiliates or stockholders thereof) will acquire, directly or indirectly, beneficial ownership, or the right to acquire beneficial ownership, or formation of any group which has beneficial ownership or has the right to acquire beneficial ownership, of 25% or more of the voting power of the Company or (v) combination of the foregoing (in each case, other than the Transactions). “Superior Proposal” means any bona fide binding written offer (not solicited by or on behalf of the Company or any Company Subsidiary or any of their respective Representatives or otherwise resulting from a breach of Section 5.02(a)) made by a third party after the date of this Agreement that, if consummated, would result in such third party (or its shareholders) owning, directly or indirectly, a majority of the voting power of the Company Capital Stock then outstanding (or of the stock of the surviving entity in a merger or the direct or indirect parent of the surviving entity in a merger) or a majority of the assets of the Company and the Company Subsidiaries, taken as a whole, which the Company Board or the Transaction Committee, determines in good faith (after consultation with its outside legal counsel and financial advisor) to be (i) more favorable to the holders of Company Common Stock from a financial point of view than the Merger and the other Transactions (taking into account all of the terms and conditions of, and the likelihood of completion of, such proposal and this Agreement (including any changes to the financial terms of this Agreement proposed by Parent in response to such offer or otherwise)) and (ii) reasonably capable of being completed, taking into account all financial, legal, regulatory and other aspects of such proposal. SECTION 5.03.
Appears in 1 contract
Samples: Ix Agreement and Plan of Merger
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct permit any Company Subsidiary to, nor shall it authorize or direct permit any officer, director or employee of, of or any investment banker, attorney, accountant or other advisor, agent advisor or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary to, directly or indirectly (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitate, facilitate or furnish or disclose non-public information in furtherance of, encourage the submission of any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal(as defined below), (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), or (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person provide any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal third party or engage in any inquiry negotiations or proposal that would reasonably be expected to result discussions in or lead to a connection with any Company Takeover Proposal; provided, however, that, that prior to obtaining receipt of the Required Company Shareholder ApprovalsStockholder Approval, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead may furnish information to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate engage in discussions or negotiations with the person making such with, any party who delivers a written proposal for a Company Takeover Proposal and its Representativeswhich was not solicited, initiated, knowingly facilitated or encouraged after the date of this Agreement in each case violation of this Agreement if and so long as the Company Board (acting on the recommendation of Directors of the Special Committee) Company determines in good faith after consultation with its outside legal counsel by resolution duly adopted that such a proposal (including any conditions to such proposal that the failure Board of Directors of the Company determines are reasonably likely to provide be satisfied) is, after consulting with the Company's independent financial advisors, more favorable to the Company stockholders from a financial point of view than the transactions contemplated by this Agreement (including any adjustment to the terms and conditions proposed by Parent in response to such Company Takeover Proposal) and is reasonably capable of being consummated (a "Superior Proposal"); provided, further, that prior to furnishing information to, or engage engaging in discussions with, any party pursuant to the foregoing proviso, the Company shall have received an executed agreement from such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Lawparty having terms which are at least as favorable to the Company as the terms contained in the Confidentiality Agreement. Without limiting the foregoing, it is agreed understood that any violation of the restrictions set forth in this Section 7.02(a) the preceding sentence by any Representative officer, director or employee of the Company or any Company Subsidiary or any investment banker, attorney, accountant or other advisor or representative of the Company or any Company Subsidiary, whether or not such person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 7.02(a4.2(a) by the Company. For purposes of this Agreement, "Company unless (i) such violation is committed without Takeover Proposal" means any proposal for a merger, consolidation or other business combination involving the knowledge Company or any Company Subsidiary or any proposal or offer to acquire in any manner, directly or indirectly, more than 20% of any class of voting securities of the Company or any Company Subsidiary, including any proposal or offer relating to the acquisition by the Company in any manner, directly or indirectly, of any securities or assets of another person in consideration for the issuance of more than 20% of any class of voting securities of the Company or any Company Subsidiary, or assets representing a substantial portion of the assets of the Company and the Company uses its reasonable best efforts to promptly cure such violation once Subsidiaries, taken as a whole, other than the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of transactions contemplated by this Agreement, the . The Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all any existing activities, discussions or negotiations with by the Company, any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal Subsidiary or any inquiry officer, director or proposal that would reasonably be expected to result in employee of or lead to a Company Takeover Proposalinvestment banker, (B) promptly request each person (attorney, accountant or other than Parent and its Representatives)advisor or representative of, if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted Subsidiary, with any parties conducted heretofore with respect to any person or its Representatives (other than Parent and its Representatives)of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Battle Mountain Gold Co)
No Solicitation by the Company. (a) The Company shall, and the Company shall direct and use its reasonable efforts to cause the Company'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) 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 through the Merger Effective Time or the earlier termination of this Agreement, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary toof the Company's directors, nor shall it authorize officers or direct any officer, director or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary retained by it to, directly or indirectly through another person, (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitateencourage (including by way of furnishing information or assistance), or furnish take any other action designed to facilitate or disclose non-public information in furtherance ofthat is likely to result in, any Company Takeover Proposal inquiries or the making of any inquiry or proposal that would constitutes, or is reasonably be expected likely to result in or lead to a Company Takeover to, any Acquisition Proposal, (ii) except in accordance with Section 9.1(f) hereof, enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Proposal Acquisition Proposal, or (iv) furnish make or disclose to authorize any person statement, recommendation or solicitation in support of any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal; provided, however, that prior to the twentieth (20th) day after the Proxy Distribution Date, if, and only to the extent that, prior the Board of Directors of the Company determines in good faith, after consultation with its outside legal and financial advisors, that the failure to obtaining do so would reasonably be expected to breach the Required Company Shareholder ApprovalsBoard's fiduciary duties under applicable law, the Company and its Representatives may, in response to a bona fide written Company Takeover Acquisition Proposal not solicited in violation of this Section 7.2(a) that the Company Board (acting on the recommendation of Directors of the Special Committee) determines Company believes in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, constitutes a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to providing forty-eight (48) hours prior written notice to Cathay 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 7.02(c)7.2(b) hereof, following delivery of the Company Notice, (x1) furnish information with respect to the Company and the Company Subsidiaries to the any person making such Company Takeover a Superior Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making (as determined by the Company Takeover Proposal and after consultation with its Representatives outside counsel) on terms no more favorable to such person than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) terms contained in any such agreement between the Company and Cathay, and (y2) participate in discussions or negotiations with the person making regarding such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Superior Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cathay General Bancorp)
No Solicitation by the Company. (a) The Subject to the other provisions of this Section 6.3, from and after the date hereof until the Effective Time or, if earlier, the valid termination of this Agreement pursuant to Article 8, the Company shall not, nor and shall it authorize cause the Company Subsidiaries and its and their Representatives (on behalf of the Company or direct any the Company Subsidiary Subsidiaries, as applicable) not to, nor shall it authorize (i) initiate, solicit, knowingly facilitate (including by providing access to its properties, books and records or direct any officer, director or employee of, data or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, non-public information concerning the Company or any Company Subsidiary toto any Third Party or group for the purpose of facilitating any inquiries, directly proposals or indirectly (ioffers relating to any Company Acquisition Proposal) solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitateencourage any inquiries, proposal or furnish offer that constitutes or disclose non-public information in furtherance of, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Acquisition Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that or the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) consummation thereof or enter into, continue or otherwise participate or engage in or continue any discussions or negotiations with respect thereto, (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, 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 Takeover Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 6.3(b)), (v) take any action to exempt any Person from, or (iv) furnish make any acquisition of securities of the Company by any Person not subject to, any state takeover statute or disclose similar statute or regulation or any similar anti-takeover provision in the Company Charter or the Company Bylaws, that applies to any person any non-public information regarding the Company or (vi) authorize any Company Subsidiary with respect of, or commit, resolve or agree to do any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected foregoing. Subject to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach the other provisions of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement6.3, the Company shall, and shall cause each the Company Subsidiary Subsidiaries and shall direct its and their the Company’s Representatives (on behalf of the Company or the Company Subsidiaries) to, (A) immediately promptly (and, in any event, within twenty-four (24) hours after the execution of this Agreement) cease and cause to be terminated all discussions any discussion or negotiations negotiation with any person Persons (other than Parent and its RepresentativesAffiliates and Representatives on its behalf) conducted prior to the date hereof by the Company, the Company Subsidiaries or any of this Agreement the Company’s Representatives with respect to a any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal, (B) promptly request each person (other than Parent and its Representatives)and, if anyin any event, that has executed a confidentiality agreement in within twenty-four (24) hours after the last 6 months execution of this Agreement) terminate access by any Third Party to return any physical or destroy all information heretofore furnished electronic data room relating to such person or its Representatives by or on behalf of the any Company Acquisition Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Company Subsidiary Acquisition Proposal and (C) immediately terminate all physical promptly (and electronic data room access previously granted in any event within two (2) Business Days after the execution of this Agreement) request the prompt return or destruction of any confidential information provided to any person 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 its Representatives 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 (other than Parent and its Representatives)B) inform a Third Party that has made or is considering making a Company Acquisition Proposal of the provisions of this Section 6.3.
Appears in 1 contract
No Solicitation by the Company. (a) The Company shall not, nor shall it permit any of its subsidiaries to, or authorize or direct permit any Company Subsidiary todirector, nor shall it authorize or direct any officer, director officer or employee of, of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor, agent advisor or representative (collectively, “Representatives”) of, of the Company or any of its subsidiaries (collectively, the “Company Subsidiary Representatives”) to, directly or indirectly indirectly, (i) solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitate, or furnish or disclose non-public information in furtherance of, encourage any Company Takeover Proposal (as defined below) or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into into, continue or otherwise participate in any agreement discussions or negotiations regarding, or furnish to any Person any information or data or afford access to the properties, books or records of the Company or any of its subsidiaries with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from Proposal, or otherwise facilitate any person making an effort or attempt to make or implement any Company Takeover for the purpose of the Company Board and the Special Committee Proposal, in each case informing itself about such other than a Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposalmade by Parent; provided, however, that, at any time prior to obtaining acceptance of the Required Company Shareholder ApprovalsShares pursuant to the Offer, the Company and its Representatives Board of Directors may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) Directors determines in good faith (faith, after consultation with its outside legal counsel and financial advisor) constitutes, constitutes or could reasonably be expected to result in or lead to, to a Superior Proposal, and which Company Takeover Proposal did not result from that is more favorable to the stockholders of the Company (taking into account the Person making the Company Takeover Proposal, the 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 of Directors) than the proposal evidenced by this Agreement (a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c“Company Competitive Proposal”), (x) furnish information with respect to the Company and the Company Subsidiaries its subsidiaries to the person Person making such this Company Takeover Competitive Proposal (and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such personrepresentatives) pursuant to a customary confidentiality agreement not materially (which confidentiality agreement contains terms that are equivalent to, and in no respect less restrictive favorable to the Company than, the terms of the person making Confidentiality Agreement, dated August 30, 2002, between Parent and the Company Takeover Proposal and its Representatives than (as it may be amended from time to time, the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) )), and (y) participate in discussions or negotiations with the person Person making such this Company Takeover Competitive Proposal (and its Representativesrepresentatives) regarding this Company Competitive Proposal, in each case if and so long as provided that (i) the Company Board (acting on the recommendation of the Special Committee) Directors determines in good faith faith, after consultation with its outside legal counsel counsel, that the failure to provide such information or engage in such negotiations or discussions negotiation, would be inconsistent with its the Board of Directors’ fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company Law and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) a copy of all the information provided to such Representative Person is also a Representative of delivered simultaneously to Parent if it has not previously been furnished or made available to Parent. Upon Promptly after the execution of this Agreement, the Company shallwill, and shall will cause each of its subsidiaries and each of the Company Subsidiary and shall direct its and their Representatives to, (Ai) immediately cease and cause to be terminated terminate all discussions or negotiations with all third parties regarding any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, and (Bii) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to prompt return or destroy destruction of all confidential information heretofore furnished relating to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access of its subsidiaries previously granted furnished to any person or its Representatives (other than Parent and its Representatives)such third parties.
Appears in 1 contract
No Solicitation by the Company. (a) The Company shall notnot directly or indirectly, nor and shall it not authorize or direct permit any of the other Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, Entities or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, Representative of any of the Company or any Company Subsidiary to, Entities directly or indirectly to, (i) solicit, initiate, knowingly encourage, knowingly induce encourage or knowingly facilitateinduce, or furnish facilitate the making, submission or disclose non-public information in furtherance of, announcement of any Company Takeover Acquisition Proposal or take any inquiry or proposal action that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal, (ii) enter into furnish any agreement information regarding any of the Company Entities to any Person in connection with or in response to a Company Acquisition Proposal or an inquiry or indication of interest that could lead to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iiiiv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into, participate in into any letter of intent or continue similar document or any discussions Contract contemplating or negotiations with respect otherwise relating to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover ProposalAcquisition Transaction; provided, however, that, that prior to obtaining the adoption of this Agreement by the Required Company Shareholder ApprovalsStockholder Vote, this Section 4.3(a) shall not prohibit the Company and its Representatives mayfrom furnishing nonpublic information regarding the Company Entities to, or entering into discussions with, any Person in response to a bona fide written Company Takeover Proposal Superior Offer that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive nor any Representative of any of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions Entities shall have breached or negotiations taken any action inconsistent with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation any of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions provisions set forth in this Section 7.02(a4.3, (2) by any Representative the board of directors of the Company or any Company Subsidiary shall be deemed to be a breach concludes in good faith, after having taken into account the advice of this Section 7.02(a) by its outside legal counsel, that such action is required in order for the Company unless (i) such violation is committed without the knowledge board of directors of the Company to comply with its fiduciary obligations to the Company's stockholders under applicable law, (3) at least three business days prior to furnishing any such 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 information to, or enter into discussions with, such Person, and the Company uses its reasonable best efforts to promptly cure receives from such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has Person an executed a confidentiality agreement in containing customary limitations on the last 6 months to return or destroy use and disclosure of all nonpublic written and oral information heretofore furnished to such person or its Representatives Person by or on behalf of the Company or any Company Subsidiary and containing customary "standstill" provisions, and (C4) immediately terminate all physical at least three business days prior to furnishing any such 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 electronic data room access previously granted agrees that any action inconsistent with any of the provisions set forth in the preceding 49 sentence by any Representative of any of the Company Entities, whether or not such Representative is purporting to act on behalf of any person or its Representatives (other than Parent and its Representatives)of the Company Entities, shall be deemed to constitute a breach of this Section 4.3 by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Specialized Health Products International Inc)
No Solicitation by the Company. (a) The Company shall notagrees that neither it nor any of its Subsidiaries shall, nor shall it authorize or direct permit any Company Subsidiary toof its or their respective directors, nor shall it authorize or direct any officerofficers, director or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative of the Company or any Subsidiary (collectively, “Representatives”) of, the Company or any Company Subsidiary to, directly or indirectly indirectly, (i) solicit, initiate, knowingly encouragecause, knowingly induce or knowingly encourage or facilitate, any inquiries or furnish the making of any proposal or disclose non-public information in furtherance of, any Company Takeover Proposal offer that constitutes or any inquiry or proposal that would is reasonably be expected likely to result in or lead to a Company Takeover Proposal, Proposal or (ii) enter into participate in any agreement with respect to negotiations or substantive discussions regarding any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company in connection with or in furtherance of, or otherwise cooperate with or knowingly assist any Company Subsidiary with respect to person in connection with, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) the preceding sentence by any Representative of the Company or any Company Subsidiary of its Subsidiaries shall be deemed to be a breach of this Section 7.02(a5.2(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of ParentCompany. Upon execution of this Agreement, the The Company shall, and shall cause each Company Subsidiary its Subsidiaries and shall direct instruct its and their Representatives to, (A) immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Company Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval (other than 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 consultation with its financial advisor and its outside counsel) constitutes or could reasonably be expected to lead to a Company Superior Proposal, the Company may, if the Company Board determines in good faith (after consultation with its outside counsel) that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties to the stockholders of the Company under applicable Law, and subject to compliance with Section 5.2(c) and after giving Parent one Business Day 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) conducted pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement; provided that all such information (to the extent that such information has not been previously provided or Made Available to Parent) is provided or Made Available to Parent, as the case may be, prior to or substantially concurrent with the date of this Agreement time it is provided or Made Available to such person, as the case may be, and (B) participate in discussions or negotiations with respect to a the person making such Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a (and its Representatives) regarding such Company Takeover Proposal, (B) promptly request each and otherwise cooperate with and assist the person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished making such Company Takeover Proposal with respect to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)Takeover Proposal.
Appears in 1 contract
No Solicitation by the Company. (a) The Company shall, and the Company shall direct and use its reasonable efforts to cause the Company’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) 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 through the Effective Time, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary toof the Company’s directors, nor shall it authorize officers or direct any officer, director or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary retained by it to, directly or indirectly through another person, (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitateencourage (including by way of furnishing information or assistance), or furnish take any other action designed to facilitate or disclose non-public information in furtherance ofthat is likely to result in, any Company Takeover Proposal inquiries or the making of any inquiry or proposal that would constitutes, or is reasonably be expected likely to result in or lead to a Company Takeover to, any Acquisition Proposal, (ii) except in accordance with Section 9.1(f) hereof, enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Proposal Acquisition Proposal, or (iv) furnish make or disclose to authorize any person statement, recommendation or solicitation in support of any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal; provided, however, that prior to the twentieth (20th) day after the date of distribution (the “Proxy Statement Distribution Date”) of the Proxy Statement to the shareholders of the Company, if, and only to the extent that, prior the Board of Directors of the Company determines in good faith, after consultation with its outside legal and financial advisors, that the failure to obtaining do so would reasonably be expected to breach the Required Company Shareholder ApprovalsBoard’s fiduciary duties under applicable law, the Company and its Representatives may, in response to a bona fide written Company Takeover Acquisition Proposal not solicited in violation of this Section 7.2(a) that the Company Board (acting on the recommendation of Directors of the Special Committee) determines Company believes in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, constitutes a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to providing forty-eight (48) hours 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 7.02(c)7.2(b) hereof, following delivery of the Company Notice, (x1) furnish information with respect to the Company and the Company Subsidiaries to the any person making such Company Takeover a Superior Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making (as determined by the Company Takeover Proposal and after consultation with its Representatives outside counsel) on terms no more favorable to such person than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) terms contained in any such agreement between the Company and Buyer, and (y2) participate in discussions or negotiations with the person making regarding such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Superior Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).
Appears in 1 contract
No Solicitation by the Company. (a) The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall notuse all reasonable efforts to cause its and its Subsidiaries’ employees, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or agents and representatives (including any investment banker, attorney, attorney or accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company retained by it or any Company Subsidiary of its Subsidiaries) not to (and shall not authorize any of them to), directly or indirectly indirectly: (i) solicit, initiate, knowingly encourage, knowingly facilitate or induce any inquiry with respect to, or knowingly facilitatethe making, submission or announcement of, any Acquisition Proposal with respect to itself, (ii) participate in any discussions or negotiations regarding, or furnish to any person or disclose non-public entity any nonpublic information in furtherance ofwith respect to, or take any Company Takeover Proposal other action to facilitate any inquiries or the making of any inquiry or proposal that would constitutes or may reasonably be expected to result in or lead to, any Acquisition Proposal with respect to a Company Takeover Proposalitself, (iiiii) engage in discussions with any person or entity with respect to any Acquisition Proposal with respect to itself, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal with respect to itself (except to the extent specifically permitted pursuant to Section 6.11 and Section 8.1(g)), or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal or transaction contemplated thereby with respect to any Company Takeover Proposal itself (except an Acceptable Confidentiality Agreement in accordance with this as permitted pursuant to Section 7.02(a) 6.11 and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making itSection 8.1(g), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the ). The Company and its Representatives maySubsidiaries shall, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries shall use all reasonable efforts to the person making such Company Takeover Proposal cause its and its Representatives Subsidiaries’ officers, directors, employees, agents and representatives (provided that all such information has been provided including any investment banker, attorney or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time accountant retained by it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(aits Subsidiaries) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease any and cause to be terminated all existing activities, discussions or negotiations with any person (other than Parent and its Representatives) third parties conducted prior to the date of this Agreement heretofore with respect to a any Acquisition Proposal with respect to itself. The Company Takeover Proposal or any inquiry or proposal shall ensure that would reasonably be expected to result in or lead to a Company Takeover Proposalits officers, (B) promptly request each person (other than Parent directors and key employees and its Representatives)investment bankers, if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf attorneys and other representatives are aware of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)provisions of this Section.
Appears in 1 contract
No Solicitation by the Company. (a) The From the date of this Agreement through the Closing Date, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary toof its directors, nor shall it authorize officers or direct any officer, director employees or employee of, or any its investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary retained by it to, directly or indirectly through another Person, (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitateencourage (including by way of furnishing information or assistance that it is not legally obligated to furnish), or furnish take any other action that is intended or disclose non-public information in furtherance ofthat is likely to result in, any Company Takeover Proposal inquiries or the making of any inquiry or proposal that would constitutes, or is reasonably be expected likely to result in or lead to a Company Takeover to, any Acquisition Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Acquisition Proposal or (iv) furnish make or disclose authorize any statement or recommendation in support of any Acquisition Proposal. Notwithstanding the foregoing, if, and only to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, extent that, prior to obtaining (i) the Required Company Shareholder Approvalsapproval of this Agreement by the Shareholders as set forth in Section 5.01(e) has not occurred, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that (ii) the Company Board (acting on the recommendation of the Special Committee) reasonably determines in good faith (faith, after consultation with its outside legal counsel and financial advisor) constitutescounsel, or could reasonably that such action would be expected required in order for directors of the Company to result comply with their respective fiduciary duties under applicable law in or lead toresponse to a bona fide, a Superior Proposal, and which Company Takeover written Acquisition Proposal did not result from a material breach solicited in violation of this Section 7.02(a6.06(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to the Purchasers of its decision to take such action in accordance with the requirements of Section 6.06(b), subject to compliance with Section 7.02(c), the Company may (x1) furnish information with respect to the Company and the Company Subsidiaries to the person any Person making such Company Takeover an Acquisition Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making (as determined by the Company Takeover Proposal after consultation with its outside legal counsel) on terms substantially similar to, and its Representatives than no less favorable to such Person than, the terms contained in the Confidentiality Agreement Agreement, (an “Acceptable Confidentiality Agreement”) and (y2) participate in discussions or negotiations with the person making regarding such Company Takeover an Acquisition Proposal and its Representatives(3) authorize any statement or recommendation in support of such an Acquisition Proposal and withhold, in each case if and so long as the Company Board (acting on withdraw, amend or modify the recommendation of the Special Committee) determines referred in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)6.02.
Appears in 1 contract
Samples: Agreement and Plan of Merger (United Financial Mortgage Corp)
No Solicitation by the Company. (a) The Company shall, and it shall cause the Company Subsidiary to, and it shall use its reasonable best efforts to cause each of the Company’s and the 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 its subsidiaries, but excluding each of the Parent Equity Sponsors (as defined in 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 any other parties that may be ongoing with respect to any Company Takeover Proposal (as defined below). The Company shall not, nor shall it authorize or direct any permit the Company Subsidiary to, nor shall it authorize or direct permit any officerof its or the Company Subsidiary’s directors, director officers or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent representative retained by it or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary to, directly or indirectly through another person, (i) solicit, initiate, knowingly encourage, knowingly induce encourage or knowingly facilitate, or furnish or disclose facilitate (including by way of furnishing non-public information in furtherance of, information) any Company Takeover Proposal inquiries or the making of any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to which constitutes any Company Takeover Proposal or (ivii) furnish solicit, initiate, encourage, facilitate or disclose to otherwise participate in any person discussions or negotiations regarding any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, thatthat if, at any time prior to obtaining the Required receipt of the Company Shareholder ApprovalsStockholder Approval, the Company and Board determines in good faith, after consultation with outside counsel, that it is required in order to comply with its Representatives fiduciary duties to the stockholders of the Company under applicable law, the Company may, in response to a bona fide written Company Takeover Proposal not solicited in violation of this Section 4.02(a) that the Company Board (acting on the recommendation of the Special Committee) determines believes in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Company Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this (as defined in Section 7.02(a4.02(b)), subject to providing prior written notice of its decision to take such action to Parent (the “Company Notice”) and compliance with Section 7.02(c4.02(c), following delivery of the Company Notice (x) furnish information with respect to the Company and the Company Subsidiaries to the any person making such a Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making (as determined by the Company Takeover Proposal and after consultation with its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”outside counsel) and (y) participate in discussions or negotiations with the person making regarding such a Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable LawProposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution For purposes of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).“
Appears in 1 contract
Samples: Agreement and Plan of Merger (Golden State Vintners Inc)
No Solicitation by the Company. (a) The Except as expressly permitted in this Section 5.5, the Company shall not, nor and shall it authorize or direct any Company Subsidiary tocause its Subsidiaries and its and their respective officers, nor shall it authorize or direct any officerdirectors, director or employee ofemployees, or any investment bankerbankers, attorneyattorneys, accountant or accountants, financial advisors, affiliates, agents and other advisor, agent or representative representatives (collectively, the “RepresentativesAgents”) of, the Company or any Company Subsidiary not to, directly or indirectly indirectly, (i) initiate, solicit, initiate, knowingly encourage, knowingly induce encourage or knowingly facilitatefacilitate (including by way of furnishing non-public information), or take any other action designed to lead to, any inquiries or the making or submission of any proposal that constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or furnish or disclose any non-public information in furtherance ofor data to, any Person that has made a Company Takeover Acquisition Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Acquisition Proposal, (iiiii) accept a Company Acquisition Proposal or enter into any agreement (other than an Acceptable Company Confidentiality Agreement in circumstances contemplated in this Section 5.5), including any letter of intent or agreement in principle, providing for or relating to a Company Acquisition Proposal, (iv) amend or grant any waiver, release or modification under, or fail to enforce, any standstill or similar agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose class of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding equity securities of the Company or any Company Subsidiary with respect of its Subsidiaries, or (v) resolve to do any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Lawforegoing. Without limiting the foregoing, it is agreed that any violation action taken by any of the restrictions set forth in this Section 7.02(a) Company’s Subsidiaries or by any Representative Agents of the Company or any Company Subsidiary shall be deemed to be of its Subsidiaries that, if taken by the Company, would constitute a breach of this Section 7.02(a) 5.5 shall constitute a breach of this Section 5.5 by the Company unless Company, regardless of (ix) whether such violation Agent is committed without the knowledge of the Company and the Company uses its reasonable best efforts authorized to promptly cure take such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives toaction, (Ay) immediately cease and cause whether such Agent is purporting to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or 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 Subsidiary 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) immediately terminate all physical 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 electronic data room access previously granted 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 person 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 its Representatives otherwise prohibits the Company from complying with the provisions of this Section 5.5 (other than Parent and its Representativesan “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) The Company shall not, nor shall it authorize or direct permit any Company Subsidiary of its subsidiaries to, nor shall it authorize or direct permit any officerof its or any of its subsidiaries' directors, director officers or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company retained by it or any Company Subsidiary of its subsidiaries to, directly or indirectly through another person, (i) solicit, initiateinitiate or encourage (including by way of furnishing information), knowingly encourageor take any other action intended to, knowingly induce or knowingly which could reasonably be expected to, facilitate, any inquiries or furnish or disclose non-public information in furtherance of, the making of any Company Takeover Proposal or any inquiry or proposal that would constitutes, or could reasonably be expected to result in lead to, any Takeover Proposal or lead to a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, continue or otherwise participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal regarding, or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to to, or otherwise cooperate in any Company Takeover Proposal or way with, any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided. Notwithstanding the foregoing, however, in the event that, prior to obtaining notwithstanding compliance with the Required Company Shareholder Approvalspreceding sentence, the Company and its Representatives may, in response to receives a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of Directors of the Special Committee) Company determines in good faith (after consultation with its outside legal counsel and a financial advisoradvisor of nationally recognized reputation) constitutes, constitutes or could is reasonably be expected likely to result in or lead to, to a Superior Proposal, and which the Company Takeover Proposal did not result from a material breach of this Section 7.02(a)may, subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and extent that the Board of Directors of the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives determines in good faith (provided after consultation with outside counsel) that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available required to such person) pursuant do so in order to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and comply with its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) fiduciary duties, participate in discussions or negotiations with the person making regarding such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines order to inform itself in good faith after consultation with its outside legal counsel that the failure a manner required to provide such information or engage in such negotiations or discussions would be inconsistent comply with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company such Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives).48
Appears in 1 contract
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) ofExcept as expressly permitted by this Section 6.3, the Company shall, and shall cause each of its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ Representatives: (i) to immediately cease and cause to be terminated any solicitation, encouragement, discussions or negotiations with any persons (other than Parent and its Subsidiaries (including Acquiror) and their respective Representatives) that may be ongoing with respect to a Company Subsidiary Takeover Proposal and (ii) not to, directly or indirectly indirectly, (iA) solicit, initiate, knowingly encourage, knowingly induce encourage or knowingly facilitatefacilitate any inquiries regarding, or furnish the making of any proposal or disclose non-public information in furtherance ofoffer that constitutes, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to to, a Company Takeover Proposal, (iiB) enter into engage in, continue or otherwise participate in any agreement with respect 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 (except 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 (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 6.3, 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 able to have sufficient information to make the determination described in Section 6.3(c)), (C) approve, adopt, publicly recommend or enter into, or publicly propose to approve, adopt, 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 Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it6.3(c)), (iiiD) enter intotake any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the DGCL) inapplicable to any person (other than Acquiror and its Affiliates) or to any transactions constituting or contemplated by a Company Takeover Proposal, (E) otherwise cooperate with or assist or participate in or continue any such inquiries, proposals, offers, discussions or negotiations or (F) 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, any confidentiality obligations with respect to any a Company Takeover Proposal or (iv) furnish similar matter or disclose any standstill provision in any agreement to any person any non-public information regarding which the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to of its Subsidiaries is a Company Takeover Proposalparty; provided, however, that, prior to obtaining the Required time the Company Shareholder ApprovalsStockholder Approval is obtained, but not after, the Company and its Representatives maymay waive any standstill or similar provisions to the extent necessary to permit a person or group to make, in response on a confidential basis to the Company Board of Directors, a bona fide written 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 (acting on the recommendation of the Special Committee) Directors determines in good faith (after consultation with its outside financial advisor and outside legal counsel and financial advisorcounsel) constitutes, or could that the failure of the Company Board of Directors to take such action would reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative 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 Subsidiary shall be deemed or any of its Subsidiaries from (x) providing to Acquiror or any of its Affiliates or Representatives the information required to be a breach of provided pursuant to this Section 7.02(a6.3 or (y) by otherwise complying with this Section 6.3. The Company and Acquiror hereby agree that all standstill or similar provisions in the Company unless (i) such violation is committed without the knowledge Confidentiality Agreement shall, as of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution date of this Agreement, the Company shall, terminate and shall cause each Company Subsidiary be of no further force and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)effect.
Appears in 1 contract
No Solicitation by the Company. (a) The Company shall not, nor shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) ofExcept as expressly permitted by this Section 6.3, the Company shall, and shall cause each of its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ Representatives: (i) to immediately cease and cause to be terminated any solicitation, encouragement, discussions or negotiations with any persons (other than Parent and its Subsidiaries (including Acquiror) and their respective Representatives) that may be ongoing with respect to a Company Subsidiary Takeover Proposal and (ii) not to, directly or indirectly indirectly, (iA) solicit, initiate, knowingly encourage, knowingly induce encourage or knowingly facilitatefacilitate any inquiries regarding, or furnish the making of any proposal or disclose non-public information in furtherance ofoffer that constitutes, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to to, a Company Takeover Proposal, (iiB) enter into engage in, continue or otherwise participate in any agreement with respect 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 (except 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 (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 6.3, 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 able to have sufficient information to make the determination described in Section 6.3(c)), (C) approve, adopt, publicly recommend or enter into, or publicly propose to approve, adopt, 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 Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.3(c)), (D) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the DGCL) inapplicable to any person (other than Acquiror and its Affiliates) or to any transactions constituting or contemplated by a Company Takeover Proposal, (E) otherwise cooperate with or assist or participate in any such inquiries, proposals, offers, discussions or negotiations or (F) 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, any confidentiality obligations with respect to a Company Takeover Proposal or similar matter or any standstill provision in any agreement to which the Company or any of its Subsidiaries 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 7.02(a) and except 6.3 (provided, further, that the Company may ascertain facts from any person making an Company Takeover for the purpose of only take such action if the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company or any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) Directors determines in good faith (after consultation with its outside financial advisor and outside legal counsel and financial advisorcounsel) constitutes, or could that the failure of the Company Board of Directors to take such action would reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative 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 Subsidiary shall be deemed or any of its Subsidiaries from (x) providing to Acquiror or any of its Affiliates or Representatives the information required to be a breach of provided pursuant to this Section 7.02(a6.3 or (y) by otherwise complying with this Section 6.3. The Company and Acquiror hereby agree that all standstill or similar provisions in the Company unless (i) such violation is committed without the knowledge Confidentiality Agreement shall, as of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution date of this Agreement, the Company shall, terminate and shall cause each Company Subsidiary be of no further force and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)effect.
Appears in 1 contract
No Solicitation by the Company. (a) The From the date of this Agreement through the Effective Time, the Company shall not, nor shall it authorize or direct permit any Company Subsidiary toof its directors, nor shall it authorize officers or direct any officer, director or employee of, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary retained by it to, directly or indirectly through another Person, (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitateencourage (including by way of furnishing information or assistance), or furnish take any other action designed to facilitate or disclose non-public information in furtherance ofthat is likely to result in, any Company Takeover Proposal inquiries or the making of any inquiry or proposal that would constitutes, or is reasonably be expected likely to result in or lead to a Company Takeover to, any Acquisition Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it)Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations with respect to regarding any Company Takeover Acquisition Proposal or (iv) furnish make or disclose authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to any person any non-public information regarding the extent that, (x) the Company or any Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company Subsidiary to comply with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result their respective fiduciary duties under applicable law in or lead response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 5.11(a) that the Company Takeover Board believes in good faith is a Superior Proposal; provided, however, thatthat no Acquisition Proposal shall be considered a Superior Proposal unless, prior during the three (3) Business Day period following notification to obtaining the Required Company Shareholder ApprovalsBuyer of the Superior Proposal, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines advisors shall have negotiated in good faith (after consultation with its outside legal counsel Buyer to make adjustments in the terms and financial advisor) constitutes, or could reasonably be expected to result in or lead to, conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal, and which such negotiations fail to result in the necessary adjustments to this Agreement; and (y) the Company Takeover Proposal did not result from a material breach provides notice to Buyer of this its decision to take such action in accordance with the requirements of Section 7.02(a5.11(b), subject to compliance with Section 7.02(c), the Company may (x1) furnish information with respect to the Company and the Company Subsidiaries to the person any Person making such Company Takeover an Acquisition Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making (as determined by the Company Takeover Proposal after consultation with its outside legal counsel) on terms substantially similar to, and its Representatives than no less favorable to Buyer than, the Confidentiality Agreement terms contained in any such agreement between the Company and Buyer, (an “Acceptable Confidentiality Agreement”) and (y2) participate in discussions or negotiations with the person making regarding such Company Takeover an Acquisition Proposal and its Representatives(3) authorize any statement or recommendation in support of such an Acquisition Proposal and withhold, in each case if and so long as the Company Board (acting on withdraw, amend or modify the recommendation of the Special Committee) determines referred to in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) by any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the Company unless (i) such violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)5.04.
Appears in 1 contract
Samples: Agreement and Plan of Merger (New Hampshire Thrift Bancshares Inc)
No Solicitation by the Company. (a) The During the Pre-Closing Period, the Company shall not, nor directly or indirectly, and shall it authorize or direct any Company Subsidiary to, nor shall it authorize or direct any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary tonot, directly or indirectly indirectly, authorize or permit any of the other Acquired Corporations or any Representative of any of the Acquired Corporations to, (i) solicit, initiate, knowingly encourage, knowingly induce initiate or knowingly facilitateseek the making, submission or furnish or disclose non-public information in furtherance of, announcement of any Company Takeover Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person (other than Parent or Merger Sub) in connection with or in response to a Company Acquisition Proposal or any inquiry similar inquiry, (iii) engage or proposal participate in any discussions or negotiations with any Person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal or any similar inquiry, (iv) approve, endorse or recommend any Company Acquisition Proposal, or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction; provided, however, that this Section 4.3 shall not prohibit (A) the Company, or the Board of Directors of the Company, prior to the approval of this Agreement by the Company Stockholders, from furnishing nonpublic information regarding the Acquired Corporations to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, bona fide written Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, would reasonably be expected to result in or lead to a Company Takeover Proposal, Superior Offer if (ii1) enter into any agreement with respect to any Company Takeover Proposal (except an Acceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose none of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations with respect to any Company Takeover Proposal or (iv) furnish or disclose to any person any non-public information regarding the Company Acquired Corporations or any Company Subsidiary with respect to Representative of any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a bona fide written Company Takeover Proposal that the Company Board (acting on the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes, or could reasonably be expected to result in or lead to, a Superior Proposal, and which Company Takeover Proposal did not result from a material breach of this Section 7.02(a), subject to compliance with Section 7.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that Acquired Corporations shall have violated any violation of the restrictions set forth in this Section 7.02(a4.3(a) by any Representative in connection with the receipt of such Company Acquisition Proposal, (2) the Board of Directors of the Company or concludes in good faith, after consultation with its outside legal counsel, that such action with respect to such Company Acquisition Proposal is required to comply with the fiduciary duties of the Board of Directors of the Company to the Company Stockholders under applicable Legal Requirements, (3) the Company gives to Parent the notice required by Section 4.3(b), and (4) the Company furnishes any information provided to the maker of the Company Subsidiary shall be deemed Acquisition Proposal only pursuant to be a breach of this Section 7.02(a) confidentiality agreement between the Company and such Person on substantially the same terms as the Confidentiality Agreement, and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished by the Company unless to Parent); or (iB) such violation is committed without subject to the knowledge obligation of the Company and the Company uses Company's Board of Directors not to withhold, withdraw or modify its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreementrecommendation except as expressly set forth in Section 4.3(d), the Company shall, from complying with Rules 14d-9 and shall cause each Company Subsidiary and shall direct its and their Representatives to, (A) immediately cease and cause 14e-2 promulgated under the Exchange Act with regard to be terminated all discussions or negotiations with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) immediately terminate all physical and electronic data room access previously granted to any person or its Representatives (other than Parent and its Representatives)Acquisition Proposal.
Appears in 1 contract
