No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), or take any action designed to facilitate, any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit the Company or the Company's board of directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule l4e-2 under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Legato Systems Inc), Agreement and Plan of Merger (Legato Systems Inc), Agreement and Plan of Merger (Otg Software Inc)
No Solicitation of Competing Transaction. (a) Neither the Company Guarantors, Shareholders, JVCo nor any JVCo Subsidiary or Affiliate of the Company JVCo shall (and the Company Guarantors, Shareholders and JVCo shall cause the officers, directors, employees, representatives and agents of the CompanyJVCo, each JVCo Subsidiary and each Affiliate of the CompanyJVCo, and their respective including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, initiate or participate in discussions or initiate or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than Purchaser, inquiriesany of its Affiliates or representatives) concerning any Acquisition Proposal. None of the Guarantors, negotiations Shareholders, JVCo or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement JVCo Subsidiary shall prohibit the Company or the Company's board of directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule l4e-2 under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will Guarantors, Shareholders, JVCo and any JVCo Subsidiary shall immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate the Guarantors, Shareholders, JVCo and participate any JVCo Subsidiary shall request (or if any of them has the contractual right to do so, demand) the return of all documents, analyses, financial statements, projections, descriptions and other data previously furnished to others in discussions and negotiations connection with such entity any efforts to sell part or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation all of JVCo Group. For the purposes of this Section 6.57.5(a) it is agreed that, submitted a bona fide written proposal with respect to each Non-Controlled JVCo Subsidiary and the board officers, directors, employees, representatives and agents of directors of each Non-Controlled JVCo Subsidiary, the Company relating Guarantors, Shareholders and JVCo shall only be required to any exercise such transaction which corporate power as they are entitled to exercise under the board determines relevant applicable law in good faith, after consultation order to procure compliance by such persons with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to covenants set out in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent7.5(a).
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (International Paper Co /New/)
No Solicitation of Competing Transaction. (a) Neither ---------------------------------------- the Company nor any Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, and each Affiliate of the Company, and their respective including, but not limited to, investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than Parent, inquiries, negotiations any of its Affiliates or any other action that could be expected to lead to the making of any proposals with respect to or representatives) concerning any Competing Transaction. Nothing Acquisition Proposal, except that nothing contained in this Section 6.5 5.5 or any other provision of this Agreement hereof shall prohibit the Company or the Company's board of directors Board from (i) taking and disclosing to the Company's stockholders shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders shareholders as, in the good faith judgment of the board of directors of the CompanyBoard, after consultation with receiving advice from outside counsel, is required under applicable law; provided, provided that the Company may not, except as permitted by Section 6.5(b5.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a))agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent.Acquisition Proposal if:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Shopping Com), Agreement and Plan of Merger (Compaq Interests Inc)
No Solicitation of Competing Transaction. (a) Neither Initial Sellers, the Company or Company Subsidiaries nor any Affiliate of the Company their respective Affiliates shall (and the Company Sellers shall cause the officers, directors, employees, representatives Representatives and agents of the Company, each Affiliate of the CompanyCompany Subsidiaries and each of their Affiliates, and their respective including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, initiate or participate in discussions or initiate or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than Purchaser, inquiries, negotiations any of its Affiliates or any other action that could be expected to lead to the making of any proposals with respect to or Representatives) concerning any Competing Transactionacquisition proposal. Nothing contained in this Section 6.5 or any other provision None of this Agreement the Initial Sellers shall, and each of them shall prohibit cause the Company or the Company's board of directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule l4e-2 under the Exchange ActCompany Subsidiaries not to, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transactionacquisition proposal. Upon execution of this Agreement, each Initial Seller shall, and shall cause the Company will to immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoingforegoing and each Seller shall, prior to receipt of and shall cause the Company stockholder approval or Company Subsidiaries to request (or if either of them has the Merger contractual right to do so, demand) the return of all documents, analyses, financial statements, projections, descriptions and adoption of this Agreement, other data previously furnished to others in connection with the Initial Sellers' efforts to sell the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which Company Subsidiaries. Initial Sellers shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of cause the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) immediately notify the Parent Purchaser of the existence of any proposal or inquiry received by the Company, Company Subsidiaries or Initial Sellers, and immediately communicate to Purchaser the terms of any proposal or inquiry which any of them may receive (and shall immediately provide to Purchaser copies of any written materials received by the Company, Company Subsidiaries and Initial Sellers in connection with such proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(ainquiry) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parentinquiry.
Appears in 2 contracts
Samples: Share Purchase and Contribution Agreement, Share Purchase and Contribution Agreement (Paradigm Ltd.)
No Solicitation of Competing Transaction. (a) Neither From the date hereof until the Termination Date, neither the Company nor any Company Subsidiary or Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in solicit or initiate or resume (including by way of furnishing or disclosing non-public information), ) or take any action designed to facilitate, facilitate any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing TransactionAcquisition Proposal. Nothing contained in this Section 6.5 SECTION 6.4 or any other provision of this Agreement shall prohibit the Company or the Company's board of directors Company Board from (i) taking and disclosing to the Company's stockholders shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 under the Exchange ActAct (PROVIDED, that such tender or exchange offer was not solicited, encouraged, discussed, or continued in contravention of this Agreement and PROVIDED, FURTHER, that discussions with respect thereto were not required to cease or be terminated pursuant to this Agreement), or (ii) making such disclosure to the Company's stockholders asshareholders where the Company Board determines in good faith, after having consulted with outside counsel (who may be its regularly engaged outside counsel), that failure to make such disclosure would violate its fiduciary duties to the Company's shareholders under Applicable Law, PROVIDED, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; providedeach case, that the Company may not, except as permitted by Section 6.5(b)SECTION 6.4(b) of this Agreement, withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any and all existing activities, discussions or negotiations with any and all parties conducted heretofore with respect to any of the foregoingAcquisition Proposal. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(aSECTION 6.4(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent.Acquisition Proposal if:
Appears in 1 contract
Samples: Agreement and Plan of Merger (McGuire Acquisition Inc)
No Solicitation of Competing Transaction. (a) Neither During the period commencing on the date hereof until the earlier to occur of the termination of this Agreement pursuant to its terms and the Effective Time, the Company and its Subsidiaries shall not, nor will they authorize or permit any Affiliate of the Company shall (and the Company shall cause the officers, their respective officers or directors, employeesor any investment banker, representatives and agents attorney or other advisor or representative retained by any of the Companythem to, each Affiliate nor will they authorize any of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not Affiliates or employees to), directly or indirectly, encourage, (i) solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or initiate negotiations regarding, or resume (including by way of furnishing or disclosing non-public information)furnish to any Person any information with respect to, or take any action designed to facilitate, any discussions, inquiries, negotiations or any other action to knowingly facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to the making of to, any proposals Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal (it being understood and agreed that informing any Person as to the existence of these provisions, or concerning requesting additional information regarding the terms and conditions of any Competing Acquisition Proposal from the Person making such Acquisition Proposal, without in each case providing additional information, shall not constitute a discussion or negotiation in violation of this Section 6.4(a)), (iv) subject to the terms of Section 7.1(b) hereof, approve, endorse or recommend any Acquisition Proposal, or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction. Nothing contained ; provided, however, that prior to the adoption and approval of this Agreement and the approval of the Merger by the requisite vote of the stockholders of the Company, nothing in this Agreement (including the first sentence of this Section 6.4(a)) shall prohibit the Company from furnishing information regarding the Company or any of its Subsidiaries to, or entering into a confidentiality agreement with, or entering into or conducting discussions or negotiations with, any Person or Group in response to a Superior Proposal submitted by such Person or Group (and not withdrawn) if (v) neither the Company nor any representative of the Company and its Subsidiaries shall have violated any of the restrictions set forth above in this Section 6.5 6.4, (w) the board of directors of the Company concludes in good faith, after consultation with its outside legal counsel, that such action is required for the board of directors of the Company to comply with its fiduciary obligations to the Company's stockholders under the DGCL, (x) three business days prior to furnishing any such information to, or entering into discussions or negotiations with, such Person or Group, the Company gives Parent written notice of the identity of such Person or Group and of the Company's intention to furnish information to, or enter into discussions or negotiations with, such Person or Group, (y) the Company receives from such Person or Group an executed confidentiality agreement at least as restrictive as the Confidentiality Agreement, and (z) contemporaneously with furnishing any other provision of such information to such Person or Group, the Company furnishes such information to Parent (to the extent such information has not been previously furnished by the Company to Parent). In addition, nothing in this Agreement shall prohibit the Company or the Company's board of directors from (i) taking and disclosing to the Company's stockholders a position complying with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule l4e-2 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure Act with regard to the Company's stockholders as, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; provided, that the an Acquisition Proposal. The Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, and its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will Subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the generality of the foregoing, the parties hereto understand and agree that any violation of the restrictions set forth in this Section 6.4(a) by any officer or director of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 6.4(a) by the Company. Notwithstanding In addition to the foregoing, the Company shall (i) provide Parent with at least forty-eight hours prior notice (or such lesser prior notice as provided to receipt the members of the Company stockholder approval board of directors of the Merger and adoption of this AgreementCompany, but in no event less than twelve hours unless the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning have previously notified Parent of a Competing Transaction if such entity or group has, on an unsolicited basis and without violation prior meeting of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to consider such Superior Proposal) of any such transaction meeting of the board of directors of the Company at which the board determines in good faith, after consultation with its outside legal and financial advisors, of directors of the Company is or may reasonably be expected to lead to consider a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hoursii) communicate to the provide Parent the material terms of any proposal, discussion, negotiation with at least three Business Days prior written notice (or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously lesser prior notice as provided to the Parentmembers of the board of directors of the Company) of a meeting of the board of directors of the Company at which the board of directors of the Company is reasonably expected to recommend a Superior Proposal to the stockholders of the Company and together with such notice a copy of the proposed form of agreement, letter of intent or other definitive document containing the terms and conditions of such Superior Proposal.
Appears in 1 contract
No Solicitation of Competing Transaction. (a) Neither from the Company nor any Affiliate date of this Agreement until and including the thirtieth (30th) day thereafter (the "Exclusivity Period"), and only for the ------------------ duration of the Company shall Exclusivity Period, the Seller (and its Subsidiaries and Affiliates) will not, and the Company shall cause the Seller (and its Subsidiaries and Affiliates) will use their reasonable best efforts to ensure that their respective officers, directors, employees, representatives and agents of the Company, each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not to)agents do not, directly or indirectly: (i) initiate, solicit or encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), or take any action designed to facilitateknowingly facilitate the making of, any discussions, inquiries, negotiations offer or any other action that could be expected proposal which constitutes or is reasonably likely to lead to any Takeover Proposal of the making of any proposals Seller or an inquiry with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit the Company or the Company's board of directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule l4e-2 under the Exchange Actthereto, or (ii) making such disclosure cause the Seller to the Company's stockholders as, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement with respect to any Competing TransactionTakeover Proposal for the Seller, or (iii) in the event of an unsolicited Takeover Proposal for the Seller, engage in negotiations or discussions with, or provide any information or data to, any Person (other than the Purchaser or any of its Affiliates or representatives) relating to any Takeover Proposal. Upon execution of this Agreement, the Company The Seller agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Takeover Proposal Interest during the Exclusivity Period. The Seller agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the foregoingobligations undertaken in this Section ------- 4.3. Notwithstanding The Seller agrees that it shall keep the foregoingPurchaser informed, on a current --- basis, of the status and terms of any Takeover Proposal Interest during the Exclusivity Period. At any time prior to receipt the earlier of the Company stockholder approval of Closing and the Merger and adoption termination of this Agreement, the Company may furnish information concerning its businessSeller shall notify the Purchaser as promptly as practicable, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify not later than the Parent of the existence next day, of any proposalinquiries, discussionexpressions of interest, negotiation proposals or inquiry of the type referred to in this Section 6.5(a) offers received by the Company, any Company Subsidiary Seller or any of their respective representativesthe Seller's representatives relating to any Takeover Proposal (a "Takeover -------- Proposal Interest") indicating, in connection with such notice, the name of the ----------------- Person indicating such Takeover Proposal Interest and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms and conditions of any proposalproposals or offers. Notwithstanding any other provision of this Agreement, discussionuntil the earlier of (x) the Closing Date and (y) the termination of this Agreement pursuant to Section 7.1, negotiation the Seller (and its ----------- Subsidiaries or inquiry which itAffiliates) shall not engage in negotiations or discussions with, or provide any Company Subsidiary information or data to any Person (other than the Purchaser or any of their respective representatives may receive and the identity its Affiliates or representatives) with respect to any proposal or offer to acquire any part of the party making assets or Capital Stock of all or any of the Acquired Companies or all or any part of the assets comprising the Acquired Business; provided however, that if Seller engages in negotiations or -------- ------- discussions with, or provides any information or data to any Person relating to any Takeover Proposal following the Exclusivity Period, the Seller will enter into a confidentiality agreement with such proposal or inquiry or engaging Person, in such discussion or negotiation. The Company will promptly provide form and substance reasonably acceptable to the Parent any non-public information concerning the Company provided any other party which was not previously provided Purchaser, with respect to the ParentAcquired Business prior to providing any Confidential Information.
Appears in 1 contract
Samples: Purchase Agreement (Staffmark Inc)
No Solicitation of Competing Transaction. (a) Neither the Company nor any Subsidiary or Affiliate of the Company shall (and the Company shall cause not authorize or permit the officers, directors, employees, representatives and agents of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective including, but not limited to, investment bankers, financial advisersattorneys and accountants, attorneys, accountants and other agents, not to), directly or indirectlyindirectly through any other Person, encourage, (i) solicit, participate in or initiate or resume encourage (including by way of furnishing or disclosing non-public information), or take any other action designed to facilitatefacilitate any Acquisition Proposal, any discussionsor afford access to the properties, inquiries, negotiations books or records of the Company or any other action that could be expected of its Subsidiaries to lead to the making of any proposals Person or group in connection with respect to any Acquisition Proposal, or (ii) participate in or initiate discussions or negotiations concerning any Competing Transaction. Nothing Acquisition Proposal; provided, however, that nothing contained in this Section 6.5 5.2 or any other provision of this Agreement hereof shall prohibit the Company or the Company's board Board of directors Directors from (iA) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 promulgated under the Exchange Act, or (iiB) making such disclosure to the Company's stockholders as, in the good faith judgment of the board Company's Board of directors of the CompanyDirectors, after consultation with receiving advice from outside counsel, is required under applicable law; provided, provided that the Company may not, except as permitted by Section 6.5(b5.2(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any letter of intent, agreement with respect to in principle or agreement concerning any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt the date of the Company stockholder approval of the Merger and adoption of this Agreement, Special Meeting the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate customary confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a))agreements, and may negotiate and participate in discussions and negotiations with such entity Person or group concerning a Competing Transaction if Superior Proposal if: (x) such entity Person or group has, on an unsolicited basis (and without violation otherwise in the absence of a breach by the Company of the provisions of this Section 6.55.2(a)), submitted a bona fide written proposal to the board Company's Board of directors of the Company Directors relating to any such transaction Superior Proposal which the board Company's Board of Directors determines in good faithfaith represents a superior transaction to the Merger and, in the good faith judgement of the Company's Board of Directors, after consultation with its outside legal and receipt of advice from the Company's financial advisors, for which financing is committed or may reasonably be expected which such entity or group has the financial capacity to lead consummate, and (y) in the good faith judgement of the Company's Board of Directors such action is required to discharge the fiduciary duties of Company's Board of Directors to the Company's stockholders under applicable law, determined only after receipt of (i) a written opinion from the Company's investment banking firm that the Superior ProposalExecution Copy Proposal is superior, from a financial point of view, to the Merger, and (ii) the legal advice of independent legal counsel to the Company that the failure to provide such information or access or to engage in such discussions or negotiations would cause the Company's Board of Directors to violate its fiduciary duties to the Company's stockholders under applicable law. The Company will promptly (and in any event within 24 hours) immediately notify the Parent Purchaser of the existence of any request for information, proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) immediately communicate to the Parent Purchaser the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives it may receive (and will immediately provide to the Purchaser copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will keep the Purchaser informed of the status and details (including amendments or proposed amendments) of any such request or Acquisition Proposal. The Company will promptly provide to the Parent Purchaser any non-public information concerning the Company provided to any other party which was not previously provided to the ParentPurchaser.
Appears in 1 contract
No Solicitation of Competing Transaction. (a) Neither The Company shall not (nor shall the Company nor authorize or permit any Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents or any of the Company, each Affiliate of the Company, and its or their respective Representatives, including, but not limited to, investment bankers, financial advisersattorneys and accountants, attorneys, accountants and other agents, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), or take any action designed to facilitatesolicit, initiate, seek, encourage or support any discussionsinquiry, inquiriesproposal or offer from, furnish any information to, or participate in any negotiations or discussions with any Person or group (other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 than Parent or any other provision of this Agreement shall prohibit the Company its Affiliates or the Company's board of directors from (iRepresentatives) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule l4e-2 under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the board of directors regarding any acquisition of the Company, after consultation any merger or consolidation with outside counselor involving the Company, is required under applicable law; providedany equity financing of the Company, that or any acquisition of all or any material portion of the Company may notstock or assets of the Company, or any equity or, except as permitted by Section 6.5(bset forth on Schedule 5.1(e)(ii), withdraw debt issuance or modifyfinancing, or propose to withdraw any partnering or modify, its position other similar transaction providing a third party with respect this Agreement rights in or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding Company’s Intellectual Property (other than a non-exclusive license entered into in the foregoing, prior to receipt ordinary course of the Company stockholder approval of the Merger and adoption of this Agreement, the Company business consistent with past practice) that may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on serve as an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal alternative to the board of directors of the Company relating to Reorganization (any such transaction which the board determines in good faithinquiry, after consultation with its outside legal and financial advisors, is proposal or may reasonably be expected to lead to a Superior offer being an “Acquisition Proposal”). The Company will promptly notify Parent in writing immediately (and in any event no later than within 24 hours) notify upon receipt by the Parent Company or any Representative of the existence Company of any proposalAcquisition Proposal, discussionany request for nonpublic information in connection with any Acquisition Proposal or for access to the properties, negotiation books or inquiry records of the type referred to in this Section 6.5(a) received Company by any Person that informs the CompanyCompany that it is considering making, or has made, an Acquisition Proposal. Such notice shall set forth the identity of the Person making the Acquisition Proposal, the material terms thereof and copies of any Company Subsidiary or any of their respective representativeswritten Acquisition Proposal, and the Company will promptly (and in shall immediately provide Parent with a further notice of regarding any event within 24 hours) communicate revisions to the Parent terms thereof. [***] [***] Certain information in this document has been omitted and filed separately with the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive Securities and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiationExchange Commission. The Company will promptly provide Confidential treatment has been requested with respect to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parentomitted portions.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Juno Therapeutics, Inc.)
No Solicitation of Competing Transaction. (a) Neither the The Company shall not, nor shall it authorize or permit any Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not to)Subsidiaries or Representatives, directly or indirectly, to (i) solicit, initiate or encourage, solicitor knowingly take any other action to facilitate (other than action reasonably necessary to enter into the confidentiality agreement contemplated by subclause (B) below), the submission of any Acquisition Proposal or (ii) participate in or initiate encourage any discussion or resume (including by way of furnishing negotiations regarding, or disclosing furnish to any person any non-public information)information with respect to, or knowingly take any action designed to facilitate, any discussions, inquiries, negotiations or any other action to facilitate (other than action reasonably necessary to enter into the confidentiality agreement contemplated by subclause (B) below) any inquiries or the making of, any proposal that could constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that, prior to the making date of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement the Stockholders Meeting, the foregoing shall not prohibit the Company Board of Directors from furnishing information to, or entering into discussions or negotiations with, any person or entity that makes an Acquisition Proposal that was not solicited by the Company's board Company in breach of directors this Section 5.5(a) or that did not otherwise result from a breach of this Section 5.5(a), if, and to the extent that, (iA) taking the Company Board of Directors, after consultation with and disclosing having considered the advice of independent outside legal counsel, determines in good faith that such action is required for the Company Board of Directors to comply with its fiduciary obligations to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule l4e-2 under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable Delaware law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position (B) in connection with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreementtaking such action, the Company will immediately cease any existing activities, discussions receives from such person or negotiations with any parties conducted heretofore with respect entity an executed agreement in reasonably customary form relating to any the confidentiality of the foregoing. Notwithstanding the foregoing, prior information to receipt of be provided to such person or entity on terms no less favorable to the Company stockholder approval of than those contained in the Merger and adoption of this Confidentiality Agreement, and (C) the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation Board of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines Directors concludes in good faith, after consultation with its outside legal and independent financial advisorsadvisor, that the Acquisition Proposal is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cypress Communications Holding Co Inc)
No Solicitation of Competing Transaction. (a) Neither the Company nor any Company Subsidiary or Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), ) or take any action designed to facilitate, facilitate any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing TransactionAcquisition Proposal. Nothing contained in this Section 6.5 6.4 or any other provision of this Agreement shall prohibit the Company or the Company's board of directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 under the Exchange Act, or (ii) making such disclosure to the Company's stockholders asif, in the good faith judgment of as and when the board of directors of the CompanyCompany determines in good faith, after consultation with outside counsel, that such disclosure is required in order to comply with their fiduciary duties to the Company's stockholders under applicable law; , provided, in each case, that the Company may not, except as permitted by Section 6.5(b6.4(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any and all existing activities, discussions or negotiations with any and all parties conducted heretofore with respect to any of the foregoingAcquisition Proposal. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a6.4(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent.Acquisition Proposal if:
Appears in 1 contract
Samples: Agreement and Plan of Merger (Electronics for Imaging Inc)
No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, Company and each Affiliate of the Company, and their respective including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), ) or take any action designed to facilitate, facilitate any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing TransactionAcquisition Proposal. Nothing contained in this Section 6.5 6.4 or any other provision of this Agreement shall prohibit the Company or the Company's board of directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party not solicited, encouraged, discussed, continued or failed to be ceased or terminated in contravention of this Agreement pursuant to Rule Rules 14d-9 or Rule and l4e-2 under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the board of directors of the Company, after consultation with pursuant to advice from outside counsel, is reasonably expected to be required under applicable law; provided, PROVIDED that the Company may not, except as permitted by Section 6.5(b6.4(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this AgreementClosing, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a6.4(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent.Acquisition Proposal if:
Appears in 1 contract
Samples: Agreement and Plan of Merger (Spiros Development Corp Ii Inc)
No Solicitation of Competing Transaction. (a) Neither From the date hereof until the Termination Date, neither the Company nor any Company Subsidiary or Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in solicit or initiate or resume (including by way of furnishing or disclosing non-public information), ) or take any action designed to facilitate, facilitate any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing TransactionAcquisition Proposal. Nothing contained in this Section 6.5 6.4 or any other provision of this Agreement shall prohibit the Company or the Company's board of directors Company Board from (i) taking and disclosing to the Company's stockholders shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 under the Exchange ActAct (provided, that such tender or exchange offer was not solicited, encouraged, discussed, or continued in contravention of this Agreement and provided, further, that discussions with respect thereto were not required to cease or be terminated pursuant to this Agreement), or (ii) making such disclosure to the Company's stockholders asshareholders where the Company Board determines in good faith, after having consulted with outside counsel (who may be its regularly engaged outside counsel), that failure to make such disclosure would violate its fiduciary duties to the Company's shareholders under Applicable Law, provided, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; providedeach case, that the Company may not, except as permitted by Section 6.5(b)6.4(b) of this Agreement, withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any and all existing activities, discussions or negotiations with any and all parties conducted heretofore with respect to any of the foregoingAcquisition Proposal. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a6.4(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent.Acquisition Proposal if:
Appears in 1 contract
Samples: Agreement and Plan of Merger (Data Research Associates Inc)
No Solicitation of Competing Transaction. (a) Neither the Company nor any Company Subsidiary or Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents Representatives of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than Parent, inquiries, negotiations any of its Affiliates or any other action that could be expected to lead to the making of any proposals with respect to or representatives) concerning any Competing Transaction. Nothing Acquisition Proposal, except that nothing contained in this Section 6.5 6.6 or any other provision of this Agreement hereof shall prohibit the Company or the Company's board Company Board of directors Directors from (i) taking and disclosing to the Company's stockholders shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders shareholders as, in the good faith judgment of the board Company Board of directors of the CompanyDirectors, after consultation with receiving advice from outside counsel, is required under applicable law; provided, provided that the Company may not, except as permitted by Section 6.5(b6.6(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a))agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent.Acquisition Proposal if:
Appears in 1 contract
No Solicitation of Competing Transaction. (a) Neither From the Company date hereof until the earlier of the Closing Date and the date on which this Agreement is terminated in accordance with Article X, neither the Seller, nor any Affiliate of the Parent nor the Company shall (and the Company each of them shall cause their respective Representatives not to) solicit or encourage the officersinitiation or submission of interest, directorsoffers, employees, representatives and agents inquiries or proposals (or consider or entertain any of the Company, each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume foregoing) from any Person (including by way of furnishing or disclosing non-public information), or take any action designed to facilitate, any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit the Company or the Company's board of directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule l4e-2 under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent providing any non-public information concerning the Company, its business or assets to any Person or otherwise), initiate or participate in any negotiations or discussions, or enter into, accept or authorize any agreement or agreement in principle, or announce any intention to do any of the foregoing, with respect to any expression of interest, offer, proposal to acquire, purchase, license, or lease (i) all or a substantial portion of the Company’s or the Parent’s business or assets, or (ii) the Company’s or the Parent’s capital stock or other securities, in each case whether by stock purchase, merger, consolidation, combination, reorganization, recapitalization, purchase of assets, tender offer, lease, license or otherwise (any of the foregoing, a “Competing Transaction”). Each of the Seller, the Parent and the Company provided shall, and each of them shall cause their respective Representatives to, immediately discontinue any ongoing discussions or negotiations (other party which was not previously provided than any ongoing discussions with Purchaser) relating to a possible Competing Transaction, and shall, to the extent permitted under any confidentiality or non-disclosure agreement existing as of the date hereof, promptly provide the Purchaser with notice of any written expression of interest, proposal or offer relating to a possible Competing Transaction that is received by such Party or any of its Representatives, which notice shall include copies of any such notice, inquiry or proposal, if in writing. The Seller represents and warrants to the Purchaser that (i) this Section does not and will not conflict with or violate any agreement, understanding or arrangement, whether written or oral, to which the Seller, the Parent or the Company, or any of their Affiliates are currently bound, and (ii) no breach or violation of the exclusivity provision of the Letter of Intent has occurred or is continuing. Purchaser acknowledges that a Competing Transaction does not include the potential divestiture of TFX and that nothing in this Section 5.14 will limit any right for Seller to negotiate or enter into any agreements with respect to the potential divestiture of TFX (so long as the Purchaser, the Parent, the Company and their post-Closing Affiliates are fully indemnified by the Seller with respect thereto).
Appears in 1 contract
No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate of the Company Subsidiary shall (and the Company shall cause not authorize the officers, directors, employees, representatives and agents of the CompanyCompany or any Subsidiary, each Affiliate of the Companyincluding, and their respective but not limited to, investment bankers, financial advisersattorneys and accountants, attorneys, accountants and other agents, not to), directly or indirectlyindirectly through any other Person, encourage, (i) solicit, participate in or initiate or resume encourage (including by way of furnishing or disclosing non-public information), or knowingly take any other action designed to facilitatefacilitate any Acquisition Proposal, any discussionsor afford access to the properties, inquiries, negotiations books or records of the Company or any other action that could be expected Subsidiary to lead to the making of any proposals Person or group in connection with respect to any Acquisition Proposal, or (ii) participate in or initiate discussions or negotiations concerning any Competing Transaction. Nothing Acquisition Proposal; provided, however, that nothing contained in this Section 6.5 5.2 or any other provision of this Agreement hereof shall prohibit the Company or the Company's board Board of directors Directors or the Special Committee from (iA) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 promulgated under the Exchange Act, or (iiB) making such disclosure to the Company's stockholders as, in the good faith judgment of the board Company's Board of directors of Directors or the CompanySpecial Committee, after consultation with receiving advice from outside counsel, is reasonably expected to be required under applicable law; provided, provided that the Company may not, except as permitted by Section 6.5(b5.2(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any letter of intent, agreement with respect in principle or agreement concerning any Acquisition Proposal, or (C) making inquiries reasonably designed to any Competing Transactiondetermine whether the Acquisition Proposal could reasonably be expected to constitute a superior transaction to the Merger from a financial point of view to the stockholders of the Company other than the Purchaser Stockholders and is reasonably capable of being funded and consummated. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this AgreementEffective Time, the Company may furnish information (including non-public information) concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate customary confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a))agreements, and may negotiate and participate in discussions and negotiations with such entity Person or group concerning a Competing Transaction if an Acquisition Proposal if: (x) such entity Person or group has, on an unsolicited basis (and without violation otherwise in the absence of a breach by the Company of the provisions of this Section 6.55.2(a)), submitted a bona fide written proposal to the board Company, the Company's Board of directors of Directors or the Company Special Committee relating to any such transaction Acquisition Proposal which the board Special Committee determines in good faith, after consultation with its outside legal and financial advisors, is or may faith could reasonably be expected to lead constitute a superior transaction to the Merger from a Superior Proposalfinancial point of view to the stockholders of the Company other than the Purchaser Stockholders and is reasonably capable of being funded and consummated, and (y) in the good faith judgment of the Company's Board of Directors or the Special Committee such action is reasonably expected to be required to discharge its fiduciary duties to the Company's stockholders under applicable law, determined only after receipt of legal advice of legal counsel to the Company's Board of Directors or the Special Committee that the failure to provide such information or access or to engage in such discussions or negotiations may cause the Company's Board of Directors or the Special Committee to violate its fiduciary duties to the Company's stockholders under applicable law. The Company will promptly (and in any event within 24 hours) notify the Parent Purchaser of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) Acquisition Proposal received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent Purchaser the material terms of any proposal, discussion, negotiation or inquiry Acquisition Proposal which it, any Company Subsidiary or any of their respective representatives it may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiationproposal. The Company will promptly provide to keep the Parent Purchaser informed of the status and details (including amendments or proposed amendments) of any non-public information concerning the Company provided any other party which was not previously provided to the Parentsuch Acquisition Proposal.
Appears in 1 contract
No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate affiliate, as defined in Rule 12b-2 promulgated under the 1934 Act (an "Affiliate") of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, Company and each Affiliate of the Company, and their respective including, but not limited to, investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than Parent, inquiries, negotiations any of its Affiliates or any other action that could be expected to lead to the making of any proposals with respect to or representatives) concerning any Competing Transaction. Nothing contained in this Section 6.5 proposal or any other provision offer to acquire all or a substantial part of this Agreement shall prohibit the business or properties of the Company or the Company's board of directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule l4e-2 under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the board of directors any capital stock of the Company, after consultation with outside counselwhether by merger, is required under applicable law; providedtender offer, that exchange offer, sale of assets or similar transactions involving the Company, division or operating or principal business unit of the Company may not, except as permitted by Section 6.5(b(an "Acquisition Proposal"), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt the date of the approval of this Agreement and the Merger by the shareholders of the Company stockholder approval of pursuant to the Merger and adoption of this AgreementConsent Solicitation (the "Shareholder Approval Date"), the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a))agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if an Acquisition Proposal if: (x) such entity or group has, has on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company Board relating to any such transaction which the board Company Board determines in good faith, after consultation with represents a superior transaction to the Merger (a "Competing Proposal") and in the good faith judgment of the Company Board the person or entity making such Competing Proposal appears to have the financial means, or the ability to obtain the necessary financing to conclude such Competing Proposal; and (y) in the opinion of the Company Board such action is required to discharge the Company Board's fiduciary duties to the Company's shareholders under applicable law following receipt of advice from independent legal counsel to the Company that the failure to provide such information or access or to engage in such discussions or negotiations would result in a reasonable possibility that the Company Board would violate its outside legal and financial advisors, is or may reasonably be expected fiduciary duties to lead to a Superior Proposalthe Company's shareholders under applicable law. The Company will promptly (and in any event within 24 hours) immediately notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) immediately communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives it may receive (and will immediately provide to Parent copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided to any other party which was not previously provided to Parent. (b) Except as set forth below in this subsection (b), neither the Company Board nor any committee thereof shall: (i) fail to include, withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent., the approval or recommendation by such Board of Directors or any such committee of this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal, or (iii) enter into any agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, prior to the Shareholder Approval Date, the Company Board may not include or may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend any Acquisition Proposal which satisfies the requirements of each of subsection (x) and subsection (y) of Section 6.2(a) hereof (any such Acquisition Proposal, a "Superior Proposal"), or enter into an agreement with respect to a Superior Proposal, in each case at any time after the fifth business day following Parent's receipt of written notice from the Company advising Parent that the Company Board has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, identifying the person making such Superior Proposal. Section 6.3
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Merger (Peerless Systems Corp)
