No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after the date of this Agreement until the Effective Time (or, if earlier, the Termination Date), the Company and its Subsidiaries shall not, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly (i) initiate or solicit any inquiry, proposal or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any Company Alternative Proposal, (ii) enter into or continue any discussions or negotiations with respect to the Company or its Subsidiaries to any Person in connection with a Company Alternative Proposal, (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any Company Alternative Proposal (a “Company Alternative Acquisition Agreement”). Following the execution of this Agreement, the Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all discussions and negotiations, if any, that have taken place prior to the date of this Agreement with any Persons with respect to any Company Alternative Proposal or the possibility thereof, (2) shall promptly request each Person, if any, that has executed a confidentiality agreement within the twelve (12) months prior to the date of this Agreement in connection with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its Subsidiaries.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Noble Corp PLC), Agreement and Plan of Merger (Diamond Offshore Drilling, Inc.), Agreement and Plan of Merger (Diamond Offshore Drilling, Inc.)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after After the date of this Agreement until hereof and prior to the Effective Time (oror earlier termination of this Agreement, if earlier, the Termination Date), neither the Company and nor any of its Subsidiaries shall notnor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other Representatives representatives (“Representatives”) not to, directly or indirectly indirectly: (i) initiate solicit, initiate, encourage or solicit induce any inquiry, proposal or offer inquiry with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any a Company Alternative Acquisition Proposal, (ii) enter into or continue participate in any discussions or negotiations with respect to the Company regarding, or its Subsidiaries furnish to any Person in connection any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Alternative ProposalAcquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement intent or similar document or any other similar agreement providing for any Contract (whether binding or not) contemplating or otherwise relating to a Company Alternative Proposal (a “Acquisition Proposal. The Company Alternative Acquisition Agreement”). Following the execution of this Agreementand its Subsidiaries and their officers, directors and employees will immediately cease, and the Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its Representatives to cease, any and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons a Person with respect to any a Company Alternative Proposal or Acquisition Proposal. To the possibility thereofextent not already requested, (2) the Company shall promptly request as soon as practicable demand that each Person, if any, that Person which has executed a confidentiality agreement within the twelve (12) 12 months prior to the date of this Agreement in connection executed a confidentiality agreement with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesAffiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Inamed Corp), Agreement and Plan of Merger (Allergan Inc), Agreement and Plan of Merger (Allergan Inc)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5The Company shall not, from and after the date nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director or employee of this Agreement until the Effective Time (oror any investment banker, if earlierattorney, the Termination Date)accountant or other advisor or representative of, the Company and its Subsidiaries shall not, and the or any Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not Subsidiary to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly (i) solicit, initiate or solicit any inquiry, proposal or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, of any Company Alternative Takeover Proposal, (ii) enter into or continue any discussions or negotiations agreement with respect to any Company Takeover Proposal or (iii) provide any non-public information regarding the Company or its Subsidiaries to any Person third party or engage in any negotiations or substantive discussions in connection with any Company Takeover Proposal; provided, however, that prior to receipt of the Company Shareholder Approval, the Company may, in response to a Company Alternative Takeover Proposal that was not solicited by the Company, provide any non-public information regarding itself to any third party or engage in any negotiations or substantive discussions with such person regarding any Company Takeover Proposal, (iii) take or propose to take any in each case only if the Company's Board of the Directors determines in good faith, after consultation with counsel and its financial advisors, that such actions prohibited by the following sentences could result in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoingSuperior Proposal. In addition, except as expressly permitted under this Section 6.5, from the date For purposes of this Agreement until the Effective TimeAgreement, or"Company Takeover Proposal" means (i) any proposal or offer for a merger, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment consolidation or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit other business combination involving the Company or any Company Significant Subsidiary, (ii) any proposal or offer to acquire in any manner, directly or indirectly, more than 20% of its the outstanding Company Common Shares or (iii) any proposal or offer to acquire in any manner, directly or indirectly, assets of the Company or the Company Subsidiaries to enter into any letter representing more than 20% of intentthe consolidated assets of the Company, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any Company Alternative Proposal (a “Company Alternative Acquisition Agreement”). Following than the execution of transactions contemplated by this Agreement, the . The Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives each Company Subsidiary to, immediately cease and cause to be terminated all any existing activities, discussions and negotiationsor negotiations by the Company, if anyany Company Subsidiary or any officer, that have taken place prior to director or employee of or investment banker, attorney, accountant or other advisor or representative of, the date of this Agreement Company or any Company Subsidiary, with any Persons parties conducted heretofore with respect to any of the foregoing. For purposes of this Agreement, a "Company Alternative Proposal or Significant Subsidiary" means any Company Subsidiary that constitutes a "significant subsidiary" of the possibility thereof, (2) shall promptly request each Person, if any, that has executed a confidentiality agreement Company within the twelve (12) months prior to meaning of Rule 1-02 of Regulation S-X of the date of this Agreement in connection with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesSEC.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Boise Cascade Corp), Agreement and Plan of Merger (Officemax Inc /Oh/)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after the date of this Agreement until the Effective Time (or, if earlier, the Termination Date)5.4, the Company shall and shall cause each of its Subsidiaries and its Subsidiaries shall notand their respective officers, directors and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not toemployees, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly Representatives: (i) initiate or solicit any inquiry, proposal or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any Company Alternative Proposal, (ii) enter into or continue any discussions or negotiations with respect to the Company or its Subsidiaries to any Person in connection with a Company Alternative Proposal, (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any Company Alternative Proposal (a “Company Alternative Acquisition Agreement”). Following the execution of this Agreement, the Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all any solicitation, knowing encouragement, discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons persons (other than Parent) that is ongoing with respect to a Company Takeover Proposal and (ii) not to, directly or indirectly, (A) solicit, initiate, knowingly encourage or knowingly facilitate any Company Alternative Proposal inquiries regarding, or the possibility thereofmaking of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal, (2B) shall promptly request each Personengage in, if anycontinue or otherwise participate in any discussions or negotiations regarding, that has executed a confidentiality agreement within the twelve (12) months prior or furnish to the date of this Agreement any other person any information in connection with or for the purpose of soliciting, initiating, encouraging or facilitating, a Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 5.4, and provided, that the Company and its consideration Representatives may make inquiries of any a person making an unsolicited Company Alternative Takeover Proposal (and its Representatives) to return or destroy all confidential information heretofore furnished ascertain facts regarding such Company Takeover Proposal for the sole purpose of the Company Board of Directors informing itself about such Company Takeover Proposal and the person making it, but in each case limiting its communication exclusively to such Person by referral and such ascertaining of facts), or on behalf (C) approve, adopt, recommend or enter into, or propose to approve, adopt, recommend or enter into, any letter of it intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Takeover Proposal. The Company shall not, and shall cause its controlled affiliates not to, release any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives third party from, or waive, amend or modify any provision of, or grant permission under, or fail to diligence or other information regarding enforce, any standstill provision in any agreement to which the Company or any of its Subsidiariescontrolled affiliates is a party; provided that, 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 Company Takeover Proposal to the Company Board of Directors.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Littelfuse Inc /De), Agreement and Plan of Merger (Ixys Corp /De/)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after Until the earlier of the Effective Time or the date of termination of this Agreement until Agreement, neither the Effective Time (orCompany, if earlierTarget OP, nor any of their subsidiaries, nor any of the Termination Date)officers or directors of the Company, the Company and its Subsidiaries shall notTarget OP, or any of their subsidiaries shall, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its commercially reasonable best efforts to cause its its, Target OP's and its Subsidiaries’ other Representatives their subsidiaries' agents, employees, representatives and affiliates (including any investment banker, attorney or accountant retained by it, Target OP or any of their subsidiaries) not to, directly or indirectly indirectly, (i) solicit or initiate any inquiries or solicit expressions of interest regarding, or the making of any inquiry, offer or proposal or offer with respect which reasonably could be expected to lead to, the receipt or knowingly encourage or knowingly facilitate the making, submission or announcement of, any of a Company Alternative ProposalTakeover Proposal (as defined herein), (ii) enter into or continue participate in any discussions or negotiations with respect to the Company provide any confidential or its Subsidiaries material non-public information, data or assistance to any Person in connection with a person relating to any Company Alternative Takeover Proposal, (iii) take except as otherwise permitted hereunder, enter into any agreement regarding any Company Takeover Proposal, (iv) except as otherwise permitted hereunder, make or propose to take authorize any statement, recommendation or solicitation in support of the actions prohibited by the following sentences or expressing neutrality in connection with a respect of any Company Alternative Takeover Proposal or (ivv) publicly propose grant any waiver or agree release under any "standstill" or similar agreement entered into prior to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until Agreement; provided, however, that prior to the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall be permitted to (A) grant engage in discussions with any waiverperson who seeks (without any solicitation by the Company or its directors, amendment officers, Employees, advisors, agents or release under any representatives in violation of this Section 4.3) to initiate discussions relating to a Company Takeover LawProposal, and (B) effect subject to receipt by the Company of an executed confidentiality agreement from such person containing customary terms for and conditions relative to transactions of such nature, furnish such person information concerning the Company and its subsidiaries, if and only to the extent that prior to furnishing any such information to, or entering into discussions with, any such person, (1) the Board of Directors of the Company determines in its good faith, after consultation with outside legal counsel, that engaging in such discussions or providing such information is consistent with the fiduciary duties of the Company's Board of Directors under applicable law, (2) the Company's Board of Directors concludes in its good faith, after consultation with its outside legal counsel and the Company Financial Advisor (or an independent financial advisor of nationally recognized reputation), that there is a reasonable likelihood that such actions would lead reasonably promptly to the receipt or submission of a Company Change of Recommendation or Superior Proposal and (C3) authorize, cause or permit the Company or any provides prior written notice to Parent of its Subsidiaries intention to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any Company Alternative Proposal (a “Company Alternative Acquisition Agreement”)take such action. Following Upon the execution of this Agreement, the Company (1) shallCompany, Target OP, their subsidiaries and their representatives immediately shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all discussions existing activities, discussions, inquiries, investigations or negotiations with all parties (other than Parent, Acquiror OP, REIT Merger Sub and negotiationstheir respective directors, if anyofficers, that have taken place prior to the date of this Agreement with any Persons agents, representatives and advisors) with respect to any Company Alternative Takeover Proposal or the possibility thereof, (2) shall promptly request each Person, if any, that has executed proposed transaction which could lead to a confidentiality agreement within the twelve (12) months prior to the date of this Agreement in connection with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesTakeover Proposal.
Appears in 2 contracts
Samples: Agreement (RFS Hotel Investors Inc), Agreement (CNL Hospitality Properties Inc)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after After the date of this Agreement until hereof and prior to the Effective Time (oror earlier termination of this Agreement, if earlier, the Termination Date), neither the Company and nor any of its Subsidiaries shall notnor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other Representatives representatives (“Representatives”) not to, directly or indirectly indirectly: (i) initiate solicit, initiate, encourage or solicit induce any inquiry, proposal or offer inquiry with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any a Company Alternative Acquisition Proposal, (ii) enter into or continue participate in any discussions or negotiations with respect to the Company regarding, or its Subsidiaries furnish to any Person in connection any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Alternative ProposalAcquisition Proposal (except to disclose the existence of the provisions of this Section 5.02), or (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement intent or similar document or any other similar agreement providing for any Contract (whether binding or not) contemplating or otherwise relating to a Company Alternative Proposal (a “Acquisition Proposal. The Company Alternative Acquisition Agreement”). Following the execution of this Agreementand its Subsidiaries and their officers, directors and employees will immediately cease, and the Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its Representatives to cease, any and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons a Person with respect to any a Company Alternative Proposal or the possibility thereof, (2) Acquisition Proposal. The Company shall promptly request as soon as practicable demand that each Person, if any, that Person which has executed a confidentiality agreement within the twelve (12) 12 months prior to the date of this Agreement in connection executed a confidentiality agreement with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesAffiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Crdentia Corp), Agreement and Plan of Merger (iVOW, Inc.)
No Solicitation by the Company. (ai) Except as expressly permitted by this Section 6.5, from and after From the date of this Agreement until the earlier of the Effective Time (orand the termination of this Agreement in accordance with Section 7.1, if earlier, the Termination Dateexcept as provided in this Section 5.2(a), the Company and its Subsidiaries shall not, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly permit or indirectly (i) initiate or solicit authorize any inquiry, proposal or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any Company Alternative Proposal, (ii) enter into or continue any discussions or negotiations with respect to the Company or of its Subsidiaries to or any Person in connection with a Company Alternative Proposaldirector, officer, employee, investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (iiicollectively, “Representatives”) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to, directly or indirectly, (A) solicit, initiate, endorse, knowingly encourage or knowingly facilitate any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) enter into or participate in any letter of intentdiscussions or negotiations with, agreement in principleor furnish any non-public information or data to, memorandum of understanding, business combination agreement any Person (other than Parent or any other similar agreement providing for of its Affiliates or any of their respective Representatives) that is reasonably likely to be considering or seeking to make a Company Alternative Proposal Acquisition Proposal, in each case relating to, or as would reasonably be expected to lead to, a Company Acquisition Proposal, or (a “C) agree or propose to do any of the foregoing. The Company Alternative Acquisition Agreement”). Following shall, and shall cause each of its Subsidiaries and the execution Representatives of this Agreement, the Company (1) shall, shall cause and its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, (1) immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement negotiations with any Persons Person conducted heretofore with respect to any Company Alternative Acquisition Proposal or the possibility thereof, (2) shall promptly request each Person, if any, that has executed a confidentiality agreement within the twelve (12) months prior to the date of this Agreement in connection with its consideration of any potential Company Alternative Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for previously granted to any such Person Person, (2) request the prompt return or destruction of all confidential information previously furnished with respect to any Company Acquisition Proposal or potential Company Acquisition Proposal, and their representatives (3) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to diligence or other information regarding the Company which it or any of its SubsidiariesAffiliates or Representatives is a party with respect to any Company Acquisition Proposal or potential Company Acquisition Proposal, and shall use commercially reasonable efforts to enforce the provisions of any such agreement, which shall include seeking any injunctive relief available to enforce such agreement (provided, that the Company shall be permitted to grant waivers of, and not enforce, any standstill agreement, but solely to the extent that the Company Board has determined in good faith, after consultation with its outside counsel, that failure to take such action (I) would prohibit or delay the counterparty from making an unsolicited Company Acquisition Proposal to the Company Board in compliance with this Section 5.2(a) and (II) would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Xylem Inc.), Agreement and Plan of Merger (Evoqua Water Technologies Corp.)
No Solicitation by the Company. (a) Except as expressly permitted by this Subject to Section 6.5, from 5.02(h): From and after the date of this Agreement until the earlier of the Effective Time (oror the date, if earlierany, the Termination Date)on which this Agreement is terminated pursuant to Section 8.01, and except as otherwise provided for in this Agreement, the Company and its Subsidiaries shall not, and the Company shall cause its Affiliates not to and shall not authorize or permit its Subsidiaries’ and their respective directors, officers and senior management employees not toofficers, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ employees, investment bankers, financial advisors, attorneys, accountants or other Representatives not advisors, agents or representatives (collectively “Representatives”) to, directly or indirectly indirectly: (i) initiate or solicit any inquirysolicit, proposal or offer with respect toinitiate, knowingly facilitate or knowingly encourage or knowingly facilitate the making, submission or announcement of, making of any Company Alternative Competing Proposal, (ii) enter into or continue participate in any discussions or negotiations with respect to the Company regarding, or its Subsidiaries knowingly furnish to any Person person any material nonpublic information in connection with furtherance of (excluding, for the avoidance of doubt, information furnished to a Company Alternative Proposal, current or prospective commercial counterparty (iiiincluding any customer or supplier) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to for the sole purpose of furthering an existing or prospective commercial arrangement with such person and, in any event, not in contemplation of any Company Competing Proposal), any Company Competing Proposal or (iii) enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any regarding a Company Alternative Proposal (a “Competing Proposal. The Company Alternative Acquisition Agreement”). Following the execution of this Agreement, the Company (1) shall, and shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its Affiliates and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons person conducted heretofore with respect to any Company Alternative Competing Proposal or the possibility thereof, (2) shall and promptly request each Personthe prompt return or destruction of all confidential information previously furnished, if any, that has executed a and the Company shall take all reasonably necessary actions to secure its rights and ensure the performance of any such person’s obligations under any applicable confidentiality agreement within the twelve (12) months prior to the date of this Agreement in connection with its consideration of any Company Alternative Proposal to return or destroy such information. The Company shall take all confidential information heretofore furnished actions necessary to such Person by or on behalf enforce its rights under the provisions of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding “standstill” agreement between the Company and any person (other than Parent), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such person to submit a Company Competing Proposal. The Company shall ensure that its Representatives are aware of the provisions of this Section 5.02, and any violation of the restrictions contained in this Section 5.02 by its SubsidiariesBoard of Directors (including any committee thereof) or its Representatives shall be deemed to be a breach of this Section 5.02 by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hertz Global Holdings Inc), Agreement and Plan of Merger (Dollar Thrifty Automotive Group Inc)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5The Company will not, from and after the date nor will it permit any of this Agreement until the Effective Time (or, if earlier, the Termination Date), the Company and its Subsidiaries shall not, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use nor will it authorize or permit any of its reasonable best efforts to cause officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its and its Subsidiaries’ other Representatives not Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate or solicit encourage (including by way of furnishing information), or take any other action designed to facilitate, any inquiries or the making of any proposal which constitutes any Company Takeover Proposal or (ii) participate in any discussions or negotiations regarding any Company Takeover Proposal; provided, however, that if, at any time prior to the Offer Completion Date, the Company Board determines in good faith, after consultation with its financial advisor and outside counsel, that failure to do so would create a reasonable possibility of a breach of its fiduciary duties to the Company's shareholders under applicable Law, the Company may, in response to a Company Takeover Proposal which was not solicited by it or which did not otherwise result from a breach of this Section 5.02(a), (A) furnish information with respect to the Company and each of its Subsidiaries to any Person pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) and (B) participate in negotiations regarding such Company Takeover Proposal. For purposes of this Agreement, "Company Takeover Proposal" means any inquiry, proposal or offer with respect to, from any Person relating to any direct or knowingly encourage indirect acquisition or knowingly facilitate purchase of 20% or more of the making, submission or announcement of, any Company Alternative Proposal, (ii) enter into or continue any discussions or negotiations with respect to assets of the Company or and its Subsidiaries to any Person in connection with a Company Alternative Proposal, (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal 20% or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any Company Alternative Proposal (a “Company Alternative Acquisition Agreement”). Following the execution of this Agreement, the Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all discussions and negotiations, if any, that have taken place prior to the date of this Agreement with any Persons with respect to any Company Alternative Proposal or the possibility thereof, (2) shall promptly request each Person, if any, that has executed a confidentiality agreement within the twelve (12) months prior to the date of this Agreement in connection with its consideration more of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf class of it or any equity securities of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its Subsidiaries, any tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of any class of equity securities of the Company or any of its Subsidiaries, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Amended and Restated Agreement and Plan of Merger (CTS Corp), Agreement and Plan of Merger (Dynamics Corp of America)
No Solicitation by the Company. (a) Except as expressly permitted by this Subject to Section 6.57.11(b), the Company agrees that from and after the date of this Agreement until the Effective Time Agreement, it shall (or, if earlier, the Termination Date), the Company i) immediately cease and its Subsidiaries shall notterminate, and the Company shall cause to be ceased and terminated, all of its and its SubsidiariesRepresentatives’ respective directors, officers discussions and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly (i) initiate or solicit any inquiry, proposal or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any Company Alternative Proposal, (ii) enter into or continue any discussions or negotiations with respect to the Company any other Person (other than Parent or its Subsidiaries to any Person in connection with a Company Alternative Proposal, (iiiAffiliates) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for regarding any Company Alternative Proposal (a “Company Alternative Acquisition Agreement”as hereinafter defined). Following the execution of this Agreement, the Company (1ii) shallpromptly request, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all discussions and negotiationsrequested that, if any, each Person that have taken place prior to the date of this Agreement has received confidential information in connection with any Persons with respect to any a possible Company Alternative Proposal or the possibility thereof, (2) shall promptly request each Person, if any, that has executed a confidentiality agreement within the last twelve (12) months prior return to the date of this Agreement in connection with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it the Company and Company Subsidiaries and (iii) not grant any waiver or release under or knowingly fail to enforce any confidentiality, standstill or similar agreement entered into or amended during the twelve (12) months prior to the date hereof in respect of a proposed Company Alternative Proposal (such agreement, a “Company Standstill Agreement”) unless the Board of the Company concludes in good faith that a failure to take any action described in this clause (iii) would reasonably likely be inconsistent with the directors’ fiduciary obligations to the Company’s stockholders under applicable Law. From and after the date of this Agreement, subject to Section 7.11(b) and Section 9.3(b), the Company shall not, directly or indirectly, nor shall the Company authorize or permit any Company Subsidiary or any of its Subsidiaries or their respective directors, officers, members, employees, representatives, agents, attorneys, consultants, contractors, accountants, financial advisors and other advisors (3a “Representative”) shall immediately terminate all physical and electronic data room access to, (i) solicit, initiate or knowingly encourage or facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to a Company Alternative Proposal, (ii) except for such Person and their representatives confidentiality agreements entered into pursuant to diligence the proviso to the first sentence of Section 7.11(b) or a definitive agreement entered into or to be entered into concurrently with a termination of this Agreement by the Company pursuant to Section 9.3(b), approve or enter into a letter of intent, memorandum of understanding or other contract with any Person, other than Parent and Merger Sub, for, constituting or otherwise relating to a Company Alternative Proposal, (iii) provide or cause to be provided any information regarding or data relating to the Company or any Company Subsidiary in connection with, or in response to, any Company Alternative Proposal by any Person, or (iv) terminate, amend, waive or permit the waiver of its Subsidiariesany voting restriction contained in the organizational or governing documents of the Company, or take any action contemplated by paragraph (a)(1) of Section 203 of the DGCL. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any officer, director or financial advisor of the Company takes any action that if taken by the Company would be a breach of this Section 7.11, the taking of such action by such officer, director or financial advisor shall be deemed to constitute a breach of this Section 7.11 by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Baker Hughes Inc), Agreement and Plan of Merger (Halliburton Co)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after the date The Company agrees that neither it nor any of this Agreement until the Effective Time (or, if earlier, the Termination Date), the Company and its Subsidiaries shall notnor any of its and their respective directors, officers or employees shall, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly through another person, (i) solicit, knowingly initiate or solicit any inquiry, proposal or offer with respect toknowingly encourage, or knowingly encourage or knowingly facilitate the making, submission or announcement offacilitate, any Company Alternative ProposalTakeover Proposal or the making or consummation thereof, (ii) enter into into, continue or continue otherwise participate in any discussions or negotiations regarding, or furnish to any person any information in connection with, or enter into any agreement with respect to, any Takeover Proposal, (iii) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person (other than Parent) with respect to the Company or its Subsidiaries to any Person in connection with a Company Alternative Proposal, (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or its Subsidiaries, (iv) publicly propose 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), or any restrictive provision of any applicable anti-takeover provision in the Company’s certificate of incorporation or bylaws, inapplicable to any transactions contemplated by a Takeover Proposal (and, to the extent permitted thereunder, the Company shall promptly take all steps necessary to terminate any waiver that may have been heretofore granted, to any person other than Parent or any of Parent’s Affiliates, under any such provisions) or (v) authorize any of, or commit or agree to do any of the foregoing. In additionWithout limiting the foregoing, except as expressly permitted under this Section 6.5, from it is agreed that any violation of the date restrictions set forth in the preceding sentence by any Representative of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any Company Alternative Proposal (shall be a “Company Alternative Acquisition Agreement”). Following the execution breach of this Agreement, Section 4.02(a) by the Company. The Company (1) shall, and shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ their Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons person conducted heretofore with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished in connection therewith. Notwithstanding the foregoing, at any time prior to obtaining the Company Alternative Stockholder Approval, in response to a bona fide written Takeover Proposal that the Board of Directors of the Company (acting through the Special Committee, if then in existence) determines in good faith (after consultation with its outside legal advisors and a financial advisor of nationally recognized reputation) constitutes or could reasonably be expected to lead to a Superior Proposal, and which Takeover Proposal was not solicited after the possibility thereofdate hereof in violation of this Section 4.02(a) and was made after the date hereof and did not otherwise result from a breach of this Section 4.02(a), the Company may, subject to compliance with this Section 4.02, (2x) shall promptly request each Personfurnish information with respect to the Company and its Subsidiaries to the person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive to such person than the provisions of the Confidentiality Agreement (excluding paragraphs 6 and 7 of the Confidentiality Agreement), provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal, if any, that has executed a confidentiality agreement within the twelve (12) months prior and only to the date of this Agreement extent that in connection with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries the foregoing clauses (x) and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding y), the Board of Directors of the Company or any of (acting through the Special Committee, if then in existence) concludes in good faith (after consultation with its Subsidiariesoutside legal advisors) that failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Xerox Corp), Voting Agreement (Affiliated Computer Services Inc)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after the date of this Agreement until the Effective Time (or, if earlier, the Termination Date), the Company and its Subsidiaries shall not, and the The Company shall cause its and not nor shall it authorize or permit any of its Subsidiaries’ , any of its or their respective directors, officers and senior management or employees not toor any investment banker, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ financial advisor, attorney, accountant or other Representatives not advisor, agent or representative retained by the Company or any Subsidiary in connection with the transactions contemplated by this Agreement (collectively, "Representatives") to, directly or indirectly through another person, (i) initiate or solicit any inquirysolicit, proposal or offer with respect toinitiate, cause, knowingly encourage, or knowingly encourage or knowingly facilitate the making, submission or announcement offacilitate, any inquiries or the making of any proposal that constitutes or is reasonably likely to lead to a Company Alternative Proposal, Takeover Proposal or (ii) enter into or continue other than solely informing persons of the provisions contained in this Section 5.02, participate in any discussions or negotiations with respect to the regarding any Company Takeover Proposal, or its Subsidiaries furnish to any Person person any information in connection with a with, or in furtherance, of any Company Alternative Takeover Proposal. Without limiting the foregoing, (iii) take or propose to take it is agreed that any violation of the actions prohibited restrictions set forth in the preceding sentence by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any Representative of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any Company Alternative Proposal (shall be a “Company Alternative Acquisition Agreement”). Following the execution breach of this Agreement, Section 5.02(a) by the Company. The Company (1) shall, and shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons person previously conducted with respect to any Company Alternative Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the possibility thereofforegoing, at any time prior to obtaining the Company Stockholder Approval (and in no event after obtaining such Company Stockholder Approval), in response to an unsolicited bona fide written Company Takeover Proposal made after the date hereof that the Company Board determines in good faith (after receiving the advice of a financial advisor of nationally recognized reputation (the Parent acknowledges and agrees that each of the financial advisors engaged by the Company in connection with entering into this Agreement satisfy this requirement) and outside counsel) constitutes or is reasonably likely to constitute a Company Superior Proposal, the Company may if the Company Board determines in good faith (after receiving the advice of its outside counsel) that there is a reasonable probability that failure to take such action would result in the Company Board breaching its fiduciary duties to the stockholders of the Company under applicable Law, and subject to compliance with Section 5.02(c) and after giving Parent prompt written notice of such determination, (2A) shall promptly request each Person, if any, that has executed furnish information with respect to the Company and its Subsidiaries to the person making such Company Takeover Proposal (and its Representatives) pursuant to a confidentiality agreement within not less restrictive of such person than the twelve Confidentiality Agreement (12other than the ninth paragraph thereto), provided that all such information (to the extent that such information has not been previously provided or made available to Parent) months is provided or made available to Parent, as the case may be, prior to or substantially concurrent with the date of this Agreement in connection with its consideration of any Company Alternative Proposal to return time it is provided or destroy all confidential information heretofore furnished made available to such Person by or on behalf of it or any of its Subsidiaries person, as the case may be, and (3B) shall immediately terminate all physical participate in discussions or negotiations with the person making such Company Takeover Proposal (and electronic data room access for its Representatives) regarding such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesTakeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Unitedhealth Group Inc), Agreement and Plan of Merger (Pacificare Health Systems Inc /De/)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after After the date of this Agreement until hereof and prior to the Effective Time (oror earlier termination of this Agreement, if earlier, the Termination Date), neither the Company and nor any of its Subsidiaries shall notnor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ ' attorneys, accountants, investment bankers, financial advisors, agents and other Representatives representatives ("Representatives") not to, directly or indirectly indirectly: (i) initiate solicit, initiate, encourage or solicit induce any inquiry, proposal or offer inquiry with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any a Company Alternative Acquisition Proposal, (ii) enter into or continue participate in any discussions or negotiations with respect to the Company regarding, or its Subsidiaries furnish to any Person in connection any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Alternative ProposalAcquisition Proposal (except to disclose the existence of the provisions of this Section 5.03), or (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement intent or similar document or any other similar agreement providing for any Contract (whether binding or not) contemplating or otherwise relating to a Company Alternative Proposal (a “Acquisition Proposal. The Company Alternative Acquisition Agreement”). Following the execution of this Agreementand its Subsidiaries and their officers, directors and employees will immediately cease, and the Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its Representatives to cease, any and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons a Person with respect to any a Company Alternative Proposal or the possibility thereof, (2) Acquisition Proposal. The Company shall promptly request as soon as practicable demand that each Person, if any, that Person which has executed a confidentiality agreement within the twelve (12) 12 months prior to the date of this Agreement in connection executed a confidentiality agreement with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesAffiliates or Subsidiaries or any of its or their Representatives with respect to such Person's consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Medicis Pharmaceutical Corp)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after After the date of this Agreement until hereof and prior to the Effective Time (oror earlier termination of this Agreement, if earlier, the Termination Date), neither the Company and nor any of its Subsidiaries shall notnor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other Representatives representatives (“Representatives”) not to, directly or indirectly indirectly: (i) initiate solicit, initiate, encourage or solicit induce any inquiry, proposal or offer inquiry with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any a Company Alternative Acquisition Proposal, (ii) enter into or continue participate in any discussions or negotiations with respect to the Company regarding, or its Subsidiaries furnish to any Person in connection any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Alternative ProposalAcquisition Proposal (except to disclose the existence of the provisions of this Section 5.03), or (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement intent or similar document or any other similar agreement providing for any Contract (whether binding or not) contemplating or otherwise relating to a Company Alternative Proposal (a “Acquisition Proposal. The Company Alternative Acquisition Agreement”). Following the execution of this Agreementand its Subsidiaries and their officers, directors and employees will immediately cease, and the Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its Representatives to cease, any and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons a Person with respect to any a Company Alternative Proposal or the possibility thereof, (2) Acquisition Proposal. The Company shall promptly request as soon as practicable demand that each Person, if any, that Person which has executed a confidentiality agreement within the twelve (12) 12 months prior to the date of this Agreement in connection executed a confidentiality agreement with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesAffiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.
Appears in 1 contract
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after After the date of this Agreement until hereof and prior to the Effective Time (oror earlier termination of this Agreement, if earlier, the Termination Date), neither the Company and nor any of its Subsidiaries shall notnor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ ' attorneys, accountants, investment bankers, financial advisors, agents and other Representatives representatives ("Representatives") not to, directly or indirectly indirectly: (i) initiate solicit, initiate, encourage or solicit induce any inquiry, proposal or offer inquiry with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any a Company Alternative Acquisition Proposal, (ii) enter into or continue participate in any discussions or negotiations with respect to the Company regarding, or its Subsidiaries furnish to any Person in connection any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Alternative ProposalAcquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement intent or similar document or any other similar agreement providing for any Contract (whether binding or not) contemplating or otherwise relating to a Company Alternative Proposal (a “Acquisition Proposal. The Company Alternative Acquisition Agreement”). Following the execution of this Agreementand its Subsidiaries and their officers, directors and employees will immediately cease, and the Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its Representatives to cease, any and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons a Person with respect to any a Company Alternative Proposal or Acquisition Proposal. To the possibility thereofextent not already requested, (2) the Company shall promptly request as soon as practicable demand that each Person, if any, that Person which has executed a confidentiality agreement within the twelve (12) 12 months prior to the date of this Agreement in connection executed a confidentiality agreement with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesAffiliates or Subsidiaries or any of its or their Representatives with respect to such Person's consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.
Appears in 1 contract
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5The Company agrees that, from and after following the date of this Agreement until and prior to the earlier of the Effective Time (or, if earlier, or the Termination Date), the neither it nor any Company and its Subsidiaries shall notSubsidiary shall, and the Company that it shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives the Company’s and each Company Subsidiary’s officers, directors, employees, advisors and agents not to, directly or indirectly indirectly, (i) knowingly solicit, initiate or solicit encourage any inquiry, inquiry or proposal that constitutes or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any could reasonably be expected to lead to a Company Alternative Acquisition Proposal, (ii) enter into provide any non-public information or continue any discussions or negotiations with respect to the Company or its Subsidiaries data to any Person relating to or in connection with a Company Alternative Acquisition Proposal, engage in any discussions or negotiations concerning a 69 Company Acquisition Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement a Company Acquisition Proposal, (iii) take approve, recommend, agree to or accept, or propose publicly to take approve, recommend, agree to or accept, any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal Acquisition Proposal, or (iv) publicly propose or approve, recommend, agree to any of the foregoing. In additionor accept, except as expressly permitted under this Section 6.5or propose to approve, from the date of this Agreement until the Effective Timerecommend, oragree to or accept, if earlieror execute or enter into, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understandingmerger agreement, business combination acquisition agreement, option agreement or any other similar agreement providing for related to any Company Alternative Proposal Acquisition Proposal. Without limiting the foregoing, any violation of the restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries or any of the Company’s or the Company Subsidiaries’ officers, directors, employees, agents or representatives (including any investment banker, attorney or accountant retained by the Company or the Company Subsidiaries) shall be a “Company Alternative Acquisition Agreement”). Following the execution breach of this Agreement, Section 8.12(a) by the Company. The Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, agrees that it will immediately cease and cause to be terminated all any existing activities, discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons conducted heretofore with respect to any Company Alternative Acquisition Proposal or the possibility thereof, (2) shall promptly request each Person, if any, that has executed a confidentiality agreement within the twelve (12) months prior except with respect to the date of transactions contemplated by this Agreement in connection with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesAgreement).
Appears in 1 contract
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after From the date of this Agreement until the East/Toucan Effective Time (or, if earlier, the Termination Date)termination of this Agreement in accordance with its terms, the Company and its Subsidiaries shall not, and the Company nor shall cause it authorize or permit any of its and Affiliates or any of its Subsidiaries’ or their respective directors, officers and senior management or employees not or any of its or their respective investment bankers, accountants, attorneys or other advisors, agents or representatives (collectively, “Representatives”) to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, (i) directly or indirectly solicit or initiate, or knowingly encourage, induce or facilitate, any Company Acquisition Transaction or any inquiry or proposal that may reasonably be expected to lead to a Company Acquisition Transaction, or (iii) initiate directly or solicit indirectly participate in any inquirydiscussions or negotiations with any Person regarding, proposal or offer furnish to any Person any information with respect to, or knowingly encourage cooperate in any way with any Person (whether or knowingly facilitate the making, submission or announcement ofnot a Person making a Company Acquisition Transaction) with respect to, any Company Alternative Proposal, (ii) enter into Acquisition Transaction or continue any discussions inquiry or negotiations with respect proposal that may reasonably be expected to the Company or its Subsidiaries lead to any Person in connection with a Company Alternative Proposal, (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Acquisition Transaction. The Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any Company Alternative Proposal (a “Company Alternative Acquisition Agreement”). Following the execution of this Agreement, the Company (1) shall, shall cause its Subsidiaries to, and shall instruct its Affiliates and use its reasonable best efforts to cause its and its Subsidiaries’ their respective Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons Person (other than Parent and its Representatives) conducted heretofore with respect to any Company Alternative Proposal Acquisition Transaction or any inquiry or proposal that may reasonably be expected to lead to a Company Acquisition Transaction, and request the possibility thereof, (2) shall promptly request each Person, if any, that has executed a confidentiality agreement within the twelve (12) months prior to the date of this Agreement in connection with its consideration of any Company Alternative Proposal to prompt return or destroy destruction of all confidential information heretofore previously furnished to any such Person by or on behalf of it or any of its Subsidiaries Representatives, and (3) shall immediately terminate all physical and electronic data room access for previously granted to any such Person and their representatives or its Representatives, in connection with any actual or potential proposal by such Person to diligence or other information regarding acquire the Company. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Affiliates of the Company or any of its Subsidiariesor their Representatives shall constitute a breach of this Section 5.02(a) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Engility Holdings, Inc.)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after From the date of this Agreement until the earlier of the Effective Time (or, if earlier, or the Termination Date)termination of this Agreement pursuant to Section 9.01, the Company and agrees that neither the Company nor any of its Subsidiaries shall not, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly (i) initiate or solicit any inquiry, proposal or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any Company Alternative Proposal, (ii) enter into or continue any discussions or negotiations with respect to the Company or its Subsidiaries to any Person in connection with a Company Alternative Proposal, (iii) take or propose to take nor any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any directors and officers of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries shall, and that it shall direct and use its best efforts to enter into any letter of intentcause the other employees, agreement in principleagents and representatives (including investment bankers, memorandum of understanding, business combination agreement attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information or assistance) any Acquisition Proposal or any inquiries that may reasonably be expected to lead to an Acquisition Proposal. The Company 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 similar agreement providing for employees, agents and representatives (including investment bankers, attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly, engage in any discussion with or provide any confidential information or data to any Person that may reasonably be expected to lead to an Acquisition Proposal or engage in any negotiations concerning, or otherwise facilitate any effort or attempt to make or implement, an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company Alternative 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 (a “Company Alternative from any Person, to recommend such Acquisition Agreement”). Following Proposal to the execution Company's stockholders or withdraw or modify in any adverse manner its approval or recommendation of this Agreement, or both, or (C) to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person, if and only to the extent that, in any such case described in clause (B) or (C), (i) the Required Company Vote shall not have been theretofore obtained, (ii) the Board of Directors of the Company shall have concluded in good faith that such Acquisition Proposal (1x) shallin the case of that described in clause (B) above would, if consummated, constitute a Superior Proposal or (y), in the case described in clause (C) above could reasonably be expected to constitute a Superior Proposal, (iii) the Board of Directors of the Company shall cause have determined in good faith on the basis of advice of outside legal counsel that such action is necessary for such Board of Directors to act in a manner consistent with its Subsidiaries tofiduciary duties under applicable Law and (iv) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors shall AGREEMENT AND PLAN OF MERGER -33- have received from such Person an executed confidentiality agreement containing customary terms and provisions. The Company shall instruct promptly notify the Parent of such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such Person and use its reasonable best efforts to cause its the material terms and its Subsidiaries’ Representatives to, conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated all any existing activities, discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons parties conducted heretofore with respect to any Company Alternative Proposal Acquisition Proposal. Nothing in this Section 6.03 shall permit the Parent or the possibility thereof, (2) shall promptly request each Person, if any, that has executed a confidentiality agreement within the twelve (12) months prior Company to the date of terminate this Agreement (except as specifically provided in connection with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesArticle IX).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dresser Industries Inc /De/)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after the date of this Agreement until the Effective Time (or, if earlier, the Termination Date), the The Company and its Subsidiaries shall not, and the Company directly or indirectly, nor shall cause it permit any of its and Subsidiaries to, nor shall it authorize or permit any of its Subsidiaries’ respective directors, officers and senior management or employees not toor any investment banker, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ financial advisor, attorney, accountant or other Representatives not to, directly or indirectly (i) initiate or solicit any inquiry, proposal or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any Company Alternative Proposal, (ii) enter into or continue any discussions or negotiations with respect to the Company or its Subsidiaries to any Person in connection with a Company Alternative Proposal, (iii) take or propose to take any of the actions prohibited representative retained by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company it or any of its Subsidiaries (collectively, the “Representatives”) to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including any proposal or offer to its shareholders) that constitutes, or may reasonably be likely to lead to, any Takeover Proposal, or enter into or maintain or continue discussions or negotiate with any letter Person in furtherance of intentsuch inquiries or to obtain a Takeover Proposal, agreement or agree to or endorse any Takeover Proposal, or authorize or permit any of its Representatives to take any such action (other than confidentiality and “standstill” agreements required pursuant to subclause (iv) below). The Company shall promptly (but in principleno event later than 24 hours) notify Parent if any proposal or offer, memorandum of understanding, business combination agreement or any other similar agreement providing for inquiry or contact with any Company Alternative Person with respect thereto, regarding a Takeover Proposal (a “Company Alternative Acquisition Agreement”). Following the execution of this Agreement, the Company (1) shall, shall cause its Subsidiaries tois made, and shall instruct promptly (but in no event later than 24 hours) inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, any other written material reasonably relating thereto. The Company immediately shall cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons parties conducted heretofore with respect to a Takeover Proposal. The Company shall not release any Company Alternative third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. Notwithstanding anything to the contrary in this Section 5.5, the Company's Board of Directors may take the actions described above in this Section 5.5 with respect to a Person who has made a written, bona fide proposal or offer that was not solicited after January 16, 2004 regarding an Acquisition Transaction if the Company's Board of Directors has (i) determined in good faith, after consultation with its financial and legal advisors that such proposal is, or could reasonably be likely to lead to the delivery of, a Superior Proposal or the possibility thereof(as defined below), (2ii) shall promptly request each Persondetermined in good faith, if anyafter consultation with its outside legal counsel, that, in light of such Superior Proposal, the taking of the actions described in this Section 5.5(a) is required to comply with its fiduciary obligations to the Company under applicable law, (iii) provided written notice to the Parent of its intent to take the actions described in this Section 5.5(a) at least two Business Days prior to taking any such action and (iv) obtained from such Person an executed confidentiality agreement and standstill agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement and the letter agreement dated January 16, 2004; provided, however, that none of the actions described in this Section 5.5(a) may be taken in the event that the Company has executed a confidentiality agreement within taken any actions in breach of this Section 5.5(a); provided further, that the twelve (12) months prior Company's Board of Directors may furnish to the date Person who has made the Superior Proposal only (i) such information that has been previously provided to the Parent or (ii) to the extent such information previously provided to the Parent has changed or been updated, such changed or updated information, provided that such changed or updated information is provided simultaneously to the Parent, and the Company's board of this Agreement in connection with its consideration directors shall keep the Parent promptly and reasonably informed as to the status of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to discussions regarding such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesSuperior Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Sanchez Computer Associates Inc)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after Until the earlier of the Effective Time or the date of termination of this Agreement until pursuant to the Effective Time (or, if earlier, the Termination Date)provisions of Section 8.1 hereof, the Company and its Subsidiaries shall not, and will not (nor will the Company shall cause its and its Subsidiaries’ respective permit any of the Company's officers, directors, officers and senior management employees not stockholders, attorneys, investment advisors, agents, representatives, Affiliates or Associates to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, ) directly or indirectly (i) initiate or solicit any inquiryindirectly, proposal or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any Company Alternative Proposal, (ii) enter into or continue any discussions or negotiations with respect to the Company or its Subsidiaries to any Person in connection with a Company Alternative Proposal, (iii) take or propose to take any of the following actions prohibited by the following sentences with any Person other than Parent and its designees: (a) solicit, initiate, entertain, review, or encourage any proposals or offers from, or conduct discussions with or engage in connection negotiations with, any Person relating to an investment in or any possible Business Combination with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries (whether such Subsidiaries are in existence on the date hereof or are hereafter organized), (b) provide information with respect to the Company to any Person, other than Parent, relating to, or otherwise cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible investment in or any Business Combination with the Company or any Subsidiaries (whether such Subsidiaries are in existence on the date hereof or are hereafter organized), (c) enter into any letter of intentcontract, agreement arrangement or understanding with any Person, other than Parent, looking toward an investment in principle, memorandum of understanding, business combination agreement or any Business Combination with the Company or any of its Subsidiaries (whether such Subsidiaries are in existence on the date hereof or are hereafter organized), or (d) make or authorize any statement, recommendation or solicitation in support of any possible investment in or Business Combination involving the Company or any of its Subsidiaries (whether such Subsidiaries are in existence on the date hereof or are hereafter organized) other similar agreement providing for any Company Alternative Proposal (a “Company Alternative Acquisition Agreement”). Following than the execution of Business Combination with Parent contemplated by this Agreement, the . The Company (1) shall, shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all discussions and negotiationsany such contacts or negotiations with any Person relating to any such transaction or Business Combination. In addition to the foregoing, if any, that have taken place the Company receives prior to the date Effective Time or the termination of this Agreement with any Persons with respect offer or proposal (formal or informal) relating to any of the above, the Company Alternative Proposal shall immediately notify Parent thereof and provide Parent with the details thereof including the identity of the Person or Persons making such offer or proposal, and copies of any written communication relating thereto and will keep Parent fully informed of the possibility thereof, status and details of any such offer of proposal. Each of the Company and Parent acknowledge that this Section 4.2 was a significant inducement for Parent to enter into this Agreement and the absence of such provision would have resulted in either (2i) shall promptly request each Person, if any, that has executed a confidentiality agreement within material reduction in the twelve (12) months prior merger consideration to be paid to the date stockholders of this Agreement in connection with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its Subsidiaries(ii) a failure to induce Parent to enter into this Agreement.
Appears in 1 contract
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after the date of this Agreement until the Effective Time (or, if earlier, the Termination Date), the The Company and its Subsidiaries shall not, and the Company nor shall cause its and it authorize or permit any of its Subsidiaries’ , any of their respective directors, officers and senior management or employees not or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it or any of its Subsidiaries or controlled Affiliates to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to(i) solicit, initiate, facilitate or knowingly encourage, directly or indirectly (i) initiate or solicit any inquiryindirectly, proposal or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any initiation of a Company Alternative Proposal, (ii) enter into any agreement, arrangement or continue understanding with respect to any Company Proposal, or agree to approve or endorse any Company Proposal or enter into any agreement, arrangement or understanding that to the Knowledge of the Company would require the Company to abandon, terminate or fail to consummate the Merger, (iii) initiate or participate in any discussions or negotiations with respect to the Company with, or its Subsidiaries to furnish or disclose any information to, any Person (other than Parent or Merger Sub or any of their representatives) in connection with a any Company Alternative Proposal, (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose facilitate or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement further in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for manner any inquiries or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, any Company Alternative Proposal (a “Proposal. The Company Alternative Acquisition Agreement”). Following the execution of this Agreement, the Company (1) shall, and shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons person conducted heretofore with respect to any Company Alternative Proposal. The Company shall not participate, directly or indirectly, in any negotiations regarding, or furnish to any other Person, any information with respect to, or otherwise cooperate in any way with, or assist, any effort or attempt by any other person to do or seek any of the activities prohibited by in this section. Should the Company receive any proposal, inquiry or contact with respect to a Company Proposal or any of the possibility thereofother activities prohibited by this section, (2) it will as promptly as practicable, and in any event within two Business Days, give written notice thereof to Parent and also shall promptly request each Personprovide Parent with such information regarding such proposal, if anyinquiry or contact as Parent reasonably may request. The Company shall be liable for any action taken by any of its Subsidiaries or any of the Company’s or its Subsidiaries’ respective directors, that has executed a confidentiality agreement within the twelve (12) months prior to the date of this Agreement in connection with its consideration of officers or employees or any Company Alternative Proposal to return investment banker, financial advisor, attorney, accountant or destroy all confidential information heretofore furnished to such Person other advisor, agent or representative retained by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any controlled Affiliates, in violation of its Subsidiariesthis Section 6.02.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Eye Care Centers of America Inc)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from From and after the date of this Agreement until the earlier of the Effective Time (oror the date, if earlierany, the Termination Date)on which this Agreement is terminated pursuant to Section 8.01, and except as otherwise provided for in this Agreement, the Company and its Subsidiaries shall not, and the Company shall cause its Affiliates not to and shall not authorize or permit its Subsidiaries’ and their respective directors, officers and senior management employees not toofficers, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ employees, investment bankers, financial advisors, attorneys, accountants or other Representatives not advisors, agents or representatives (collectively “Representatives”) to, directly or indirectly indirectly: (i) initiate or solicit any inquirysolicit, proposal or offer with respect toinitiate, knowingly facilitate or knowingly encourage or knowingly facilitate the making, submission or announcement of, making of any Company Alternative Competing Proposal, (ii) enter into or continue participate in any discussions or negotiations with respect to the Company regarding, or its Subsidiaries furnish to any Person person any material nonpublic information in connection with furtherance of (excluding, for the avoidance of doubt, information furnished to a Company Alternative Proposal, current or prospective commercial counterparty (iiiincluding any customer or supplier) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to for the sole purpose of furthering an existing or prospective commercial arrangement with such person and, in 49 any event, not in contemplation of any Company Competing Proposal), any Company Competing Proposal or (iii) enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any regarding a Company Alternative Proposal (a “Competing Proposal. The Company Alternative Acquisition Agreement”). Following the execution of this Agreement, the Company (1) shall, and shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its Affiliates and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons person conducted heretofore with respect to any Company Alternative Competing Proposal or the possibility thereof, (2) shall and promptly request each Personthe prompt return or destruction of all confidential information previously furnished, if any, that has executed a and the Company shall take all reasonably necessary actions to secure its rights and ensure the performance of any such person’s obligations under any applicable confidentiality agreement within the twelve (12) months prior to the date of this Agreement in connection with its consideration of any Company Alternative Proposal to return or destroy such information. The Company shall take all confidential information heretofore furnished actions necessary to such Person by or on behalf enforce its rights under the provisions of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding “standstill” agreement between the Company and any person (other than Parent), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such person to submit a Company Competing Proposal. The Company shall ensure that its Representatives are aware of the provisions of this Section 5.03, and any violation of the restrictions contained in this Section 5.03 by its SubsidiariesBoard of Directors (including any committee thereof) or its Representatives shall be deemed to be a breach of this Section 5.03 by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from From and after the date of this Agreement until the earlier of the Effective Time (oror the date, if earlierany, the Termination Date)on which this Agreement is terminated pursuant to Section 8.01, and except as otherwise provided for in this Agreement, the Company and its Subsidiaries shall not, and the Company shall cause its Affiliates not to and shall not authorize or permit its Subsidiaries’ and their respective directors, officers and senior management employees not toofficers, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ employees, investment bankers, financial advisors, attorneys, accountants or other Representatives not advisors, agents or representatives (collectively “Representatives”) to, directly or indirectly indirectly: (i) initiate or solicit any inquirysolicit, proposal or offer with respect toinitiate, knowingly facilitate or knowingly encourage or knowingly facilitate the making, submission or announcement of, making of any Company Alternative Competing Proposal, (ii) enter into or continue participate in any discussions or negotiations with respect to the Company regarding, or its Subsidiaries furnish to any Person person any material nonpublic information in connection with furtherance of (excluding, for the avoidance of doubt, information furnished to a Company Alternative Proposal, current or prospective commercial counterparty (iiiincluding any customer or supplier) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries to for the sole purpose of furthering an existing or prospective commercial arrangement with such person and, in any event, not in contemplation of any Company Competing Proposal), any Company Competing Proposal or (iii) enter into any letter of intent, agreement in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any regarding a Company Alternative Proposal (a “Competing Proposal. The Company Alternative Acquisition Agreement”). Following the execution of this Agreement, the Company (1) shall, and shall cause its Subsidiaries to, and shall instruct and use its reasonable best efforts to cause its Affiliates and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons person conducted heretofore with respect to any Company Alternative Competing Proposal or the possibility thereof, (2) shall and promptly request each Personthe prompt return or destruction of all confidential information previously furnished, if any, that has executed a and the Company shall take all reasonably necessary actions to secure its rights and ensure the performance of any such person’s obligations under any applicable confidentiality agreement within the twelve (12) months prior to the date of this Agreement in connection with its consideration of any Company Alternative Proposal to return or destroy such information. The Company shall take all confidential information heretofore furnished actions necessary to such Person by or on behalf enforce its rights under the provisions of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding “standstill” agreement between the Company and any person (other than Parent), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such person to submit a Company Competing Proposal. The Company shall ensure that its Representatives are aware of the provisions of this Section 5.03, and any violation of the restrictions contained in this Section 5.03 by its SubsidiariesBoard of Directors (including any committee thereof) or its Representatives shall be deemed to be a breach of this Section 5.03 by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hertz Global Holdings Inc)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after From the date of this Agreement until the earlier of the Effective Time (or, if earlier, or the Termination Date)termination of this Agreement pursuant to Section 9.01, the Company and agrees that neither the Company nor any of its Subsidiaries shall not, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly (i) initiate or solicit any inquiry, proposal or offer with respect to, or knowingly encourage or knowingly facilitate the making, submission or announcement of, any Company Alternative Proposal, (ii) enter into or continue any discussions or negotiations with respect to the Company or its Subsidiaries to any Person in connection with a Company Alternative Proposal, (iii) take or propose to take nor any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any directors and officers of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Law, (B) effect a Company Change of Recommendation or (C) authorize, cause or permit the Company or any of its Subsidiaries shall, and that it shall direct and use its best efforts to enter into any letter of intentcause the other employees, agreement in principleagents and representatives (including investment bankers, memorandum of understanding, business combination agreement attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information or assistance) any Acquisition Proposal or any inquiries that may reasonably be expected to lead to an Acquisition Proposal. The Company 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 similar agreement providing for employees, agents and representatives (including investment bankers, attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly, engage in any discussion with or provide any confidential information or data to any Person that may reasonably be expected to lead to an Acquisition Proposal or engage in any negotiations concerning, or otherwise facilitate any effort or attempt to make or implement, an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company Alternative shall be permitted (A), to the extent applicable, to comply, with regard to an Acquisition Proposal, with Rule 14e-2(a) promulgated under the Exchange Act, (B) in response AGREEMENT AND PLAN OF MERGER to an unsolicited bona fide written Acquisition Proposal (a “Company Alternative from any Person, to recommend such Acquisition Agreement”). Following Proposal to the execution Company's stockholders or withdraw or modify in any adverse manner its approval or recommendation of this Agreement, or both, or (C) to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person, if and only to the extent that, in any such case described in clause (B) or (C), (i) the Required Company Vote shall not have been theretofore obtained, (ii) the Board of Directors of the Company shall have concluded in good faith that such Acquisition Proposal (1x) shallin the case of that described in clause (B) above would, if consummated, constitute a Superior Proposal or (y), in the case described in clause (C) above could reasonably be expected to constitute a Superior Proposal, (iii) the Board of Directors of the Company shall cause have determined in good faith on the basis of advice of outside legal counsel that such action is necessary for such Board of Directors to act in a manner consistent with its Subsidiaries tofiduciary duties under applicable Law and (iv) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors shall have received from such Person an executed confidentiality agreement containing customary terms and provisions. The Company shall instruct promptly notify the Parent of such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated or continued with, any of its representatives indicating, in connection with such notice, the name of such Person and use its reasonable best efforts to cause its the material terms and its Subsidiaries’ Representatives to, conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated all any existing activities, discussions and negotiations, if any, that have taken place prior to the date of this Agreement or negotiations with any Persons parties conducted heretofore with respect to any Company Alternative Proposal Acquisition Proposal. Nothing in this Section 6.03 shall permit the Parent or the possibility thereof, (2) shall promptly request each Person, if any, that has executed a confidentiality agreement within the twelve (12) months prior Company to the date of terminate this Agreement (except as specifically provided in connection with its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its SubsidiariesArticle IX).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dresser Industries Inc /De/)
No Solicitation by the Company. (a) Except as expressly permitted by this Section 6.5, from and after From the date of this Agreement hereof until the Effective Time (Closing Date or, if earlier, the Termination Date)termination of this Agreement in accordance with Article VIII, the Company and its Subsidiaries shall not, and the Company shall cause its and its Subsidiaries’ respective directors, officers and senior management employees not to, and shall instruct and use its reasonable best efforts to cause its and their representatives acting on its Subsidiaries’ other Representatives and their behalf, not to, directly or indirectly to (i) initiate or solicit continue any inquiry, proposal or offer negotiations with any Person with respect to, or knowingly encourage provide any non-public information or knowingly facilitate data concerning the makingCompany or any of the Company’s Subsidiaries to any Person relating to, submission an Acquisition Proposal or announcement ofafford (or continue to afford) to any Person access to the business, properties, assets or personnel of the Company or any Company Alternative of the Company’s Subsidiaries in connection with an Acquisition Proposal, (ii) enter into any acquisition agreement, merger agreement or continue similar definitive agreement, or any discussions letter of intent, memorandum of understanding or negotiations with respect agreement in principle, or any other agreement relating to the Company or its Subsidiaries to any Person in connection with a Company Alternative an Acquisition Proposal, (iii) take or propose to take any of the actions prohibited by the following sentences in connection with a Company Alternative Proposal or (iv) publicly propose or agree to any of the foregoing. In addition, except as expressly permitted under this Section 6.5, from the date of this Agreement until the Effective Time, or, if earlier, the Termination Date, neither the Company Board nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Lawconfidentiality agreement or the anti-takeover laws of any state, (B) effect a Company Change of Recommendation or (Civ) authorizeotherwise knowingly facilitate any such inquiries, cause proposals, discussions, or permit the Company negotiations or any of its Subsidiaries effort or attempt by any Person to enter into any letter of intent, agreement make an Acquisition Proposal. Notwithstanding anything to the contrary in principle, memorandum of understanding, business combination agreement or any other similar agreement providing for any Company Alternative Proposal (a “Company Alternative Acquisition Agreement”). Following the execution of this Agreement, the Company (1) shall, shall cause and its Subsidiaries toand their respective representatives shall not be restricted pursuant to the foregoing sentence with respect to any actions explicitly contemplated this Agreement (including the PIPE Investment) or the Ancillary Agreements. From and after the date hereof, the Company shall, and shall instruct its officers and use its reasonable best efforts to directors to, and the Company shall instruct and cause its representatives acting on its behalf, its Subsidiaries and its Subsidiaries’ Representatives their respective representatives (acting on their behalf) to, immediately cease and cause to be terminated terminate all discussions and negotiations, if any, that have taken place prior to the date of this Agreement negotiations with any Persons that may be ongoing with respect to any Company Alternative an Acquisition Proposal or the possibility thereof, (2) shall promptly request each Person, if any, that has executed a confidentiality agreement within the twelve (12) months prior to the date of this Agreement in connection other than with Parent and its consideration of any Company Alternative Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (3) shall immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Company or any of its Subsidiariesrepresentatives).
Appears in 1 contract
Samples: Business Combination Agreement and Plan of Merger (Nebula Caravel Acquisition Corp.)
