No Solicitation of Competing Transactions. Neither the Company nor any Subsidiary shall, directly or indirectly, through any officer or director or any agent acting at the Company's authorization or direction, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action knowingly to facilitate, any inquiries about or the making of any proposal that the Company enter into any Competing Transaction (as defined below), or enter into, maintain or have discussions or negotiate with any person in furtherance of such inquiries or to obtain or seek to obtain a Competing Transaction, or agree to, recommend or endorse any Competing Transaction or withdraw or modify, or propose publicly to withdraw or modify, its recommendation set forth in Section 1.02(a) hereof, or authorize or permit any person to take any such action, and the Company shall notify Parent orally (within one (1) business day) and in writing (as promptly as practicable) after receipt by any officer or director of the Company or any Subsidiary or any investment banker, financial advisor, agent or attorney retained by the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or any of its Subsidiaries either in connection with such an inquiry or proposal or when such request for non-public information could reasonably be expected to lead to such a proposal; provided, however, that nothing contained in this Section 6.05 or any other provision hereof shall prohibit the Board of Directors of the Company from, (i) at any time prior to the acceptance for payment by Purchaser of the Shares, furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited, bona
Appears in 3 contracts
Samples: Merger Agreement (Signal Technology Corp), Merger Agreement (Crane Co /De/), Merger Agreement (Crane Co /De/)
No Solicitation of Competing Transactions. Neither the Company nor any Subsidiary shall, directly or indirectly, including through any officer officer, director, employee, stockholder, investment banker, financial advisor, agent or director or any agent acting at the Company's authorization or directionattorney, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action knowingly to facilitate, any inquiries about or the making of any proposal that the Company enter into any Competing Transaction (as defined below), or enter into, maintain or have discussions or negotiate with any person in furtherance of such inquiries or to obtain or seek to obtain a Competing Transaction, or agree to, recommend or endorse any Competing Transaction or withdraw or modify, or propose publicly to withdraw or modify, its recommendation set forth in Section 1.02(a) 3.19 hereof, or authorize or permit any person to take any such action, and the Company shall notify Parent orally (within one (1) business calendar day) and in writing (as promptly as practicable) after receipt by any officer or director of the Company or any Subsidiary or any investment banker, financial advisor, agent or attorney retained by the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or any of its Subsidiaries either in connection with such an inquiry or proposal or when such request for non-public information could reasonably be expected to lead to such a proposal; , provided, however, that nothing contained in this Section 6.05 or any other provision hereof shall prohibit the Board of Directors of the Company from, from (i) at any time prior to the acceptance for payment by Purchaser of the SharesEffective Time, furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited, bonabona fide proposal for a Competing Transaction, if, and only to the extent that, (A) the Board of Directors of the Company, after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), determines in good faith that failure to take such action would constitute a breach of the fiduciary duties of the Board of Directors of the Company to the Company's stockholders under applicable Law, and, solely with respect to entering into such discussions or negotiations, the Board of Directors of the Company determines in good faith, based on the advice of its financial advisors, that such Competing Transaction is or is reasonably likely to be more favorable to the Company's stockholders, from a financial point of view, than the Merger and the other transactions contemplated hereby and (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person, the Company (x) provides at least two (2) business days prior written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person and provides in such notice, in reasonable detail, the identity of the person making such proposal and the terms and conditions of such proposal, (y) provides Parent with all information to be provided to such person which Parent has not previously been provided, and (z) receives from such person an executed confidentiality agreement in reasonably customary form and having terms no less favorable to the Company than those contained in the Confidentiality Agreement; (ii) complying with Rule 14e-2 (and any associated obligation under Rule 14D-9) promulgated under the Exchange Act with regard to a third party tender or exchange offer, provided, however, that the Board of Directors of the Company shall not recommend acceptance of such tender or exchange offer unless, the Board of Directors of the Company, after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), determines in good faith that failure to take such action would constitute a breach of the fiduciary duties of the Board of Directors of the Company to the Company's stockholders under applicable Law; (iii) referring any third party to this Section 6.05 or making a copy of this Section 6.05 available to any third party; or (iv) failing to make or withdrawing or modifying its recommendation in Section 3.19 hereof following the making of an unsolicited, bona fide proposal relating to a Competing Transaction if the Board of Directors of the Company, after consultation with independent legal counsel (who
Appears in 2 contracts
Samples: Merger Agreement (Computer Access Technology Corp), Merger Agreement (Lecroy Corp)
No Solicitation of Competing Transactions. (a) The Company and its affiliates shall, and shall cause their respective officers, directors, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties with respect to any Competing Transaction (as defined below) and shall seek to have returned to the Company any confidential information that has been provided in any such discussions or negotiations. Neither the Company nor any Subsidiary shall, directly or indirectly, through any officer officer, director, agent or director or any agent acting at the Company's authorization or directionotherwise, initiate, solicit or knowingly intentionally encourage (including by way of furnishing non-public information or assistance), or take any other action knowingly to intentionally facilitate, any inquiries about or the making of any proposal that the Company enter into constitutes, or may reasonably be expected to lead to, any Competing Transaction (as defined below)Transaction, or enter into, maintain or have into discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain or seek to obtain a Competing Transaction, or agree to, recommend to or endorse any Competing Transaction or withdraw or modify, or propose publicly to withdraw or modify, its recommendation set forth in Section 1.02(a) hereofTransaction, or authorize or permit any person to take any such actionof the officers, and the Company shall notify Parent orally (within one (1) business day) and in writing (as promptly as practicable) after receipt by any officer directors or director employees of the Company or any Subsidiary or any investment banker, financial advisor, attorney, accountant or other agent or attorney retained by representative of the Company or to take any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or any of its Subsidiaries either in connection with such an inquiry or proposal or when such request for non-public information could reasonably be expected to lead to such a proposalAction; provided, however, that nothing contained in this Section 6.05 or any other provision hereof 5.3 shall -------- ------- ----------- prohibit the Board of Directors of the Company fromCompany, before the consummation (or, if the Offer is consummated and extended, the initial consummation) of the Offer, from (i) at any time prior to the acceptance for payment by Purchaser of the Shares, furnishing information to, or entering into discussions or negotiations with, any person or entity that makes an unsolicited, bonabona fide written proposal to acquire the Company pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith (after consultation with its financial advisor) that the proposal would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the transactions contemplated by this Agreement, (B) the Board of Directors of the Company further determines in good faith after consultation with its financial adviser and outside counsel that the proposal is as likely to be consummated, taking into account the legal, financial, regulatory, and other aspects of such proposal, as the transactions contemplated hereby, and, after consultation with its outside counsel, that the failure to do so would cause the Board of Directors of the Company to breach its fiduciary duties to the Company or its stockholders under applicable law (any such proposal, a "Superior Proposal"), ----------------- (C) no information is so furnished, and no such discussions or negotiations are held, prior to the execution by the receiving party and the Company of a confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (as defined in Section 6.3 below), ----------- and (D) such actions are not in violation of this Agreement, or (ii) complying with Rule 14e- 2 promulgated under the Exchange Act with regard to a tender or exchange offer.
(b) The Company shall notify Parent promptly if any such proposal or offer, or any inquiry or contact with any person with respect thereto, is made and shall, in any such notice to Parent indicate in reasonable detail the identity of the person making such proposal, offer, inquiry or contact and the terms and conditions of such proposal, offer, inquiry or contact, and shall advise Parent from time to time of the status and any material developments concerning the same. The Company agrees not to release any third party from, or waive any provision of, any confidentiality or standstill agreement to which the Company is a party (except to the extent necessary to permit such third party to deliver a Superior Proposal).
(c) Except as provided in the following sentence, neither the Company nor the Company's Board of Directors (the "Board") shall withdraw or modify in a ----- manner adverse to Parent or Purchaser, or propose to withdraw or modify in a manner adverse to Parent or Purchaser, or fail at Parent's request to reaffirm, the approval by such Board of this Agreement, the Offer or the Merger or the favorable recommendation of the Board with respect thereto. The foregoing notwithstanding, in the event that, after the Company has received a bona fide written proposal for a Competing Transaction that is a Superior Proposal that is made after the date hereof, and that is not solicited in violation of this Agreement, the Board determines (based on the advice of its outside counsel), prior to the consummation (or, if the Offer is consummated and extended, the initial consummation) of the Offer, that the failure to take such actions would be a breach of its fiduciary duties to the Company's stockholders under applicable law, then the Board may (x) withdraw or modify its approval or recommendation of this Agreement, the Offer or the Merger and disclose to the Company's stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or otherwise make disclosure to them, or (y) approve or recommend such a Competing Transaction that is a Superior Proposal; provided, however, that in no event may the Board take either such action -------- ------- earlier than the second full business day following Parent's receipt of written notice of the intention of the Board to do so.
(d) The Company and the Board shall not (i) redeem the Rights under the Rights Plan, or waive or amend any provision of the Rights Plan, in any such case to permit or facilitate the consummation of any Competing Transaction or Superior Proposal, or (ii) enter into any agreement with respect to, or otherwise approve or recommend to stockholders, or publicly propose to approve or recommend, any Superior Proposal or Competing Transaction, unless this Agreement has been terminated in accordance with its terms.
(e) The Company shall not release any third party from the confidentiality provisions of any agreement to which the Company is a party.
(f) For purposes of this Agreement, a "Competing Transaction" shall --------------------- mean any of the following involving the Company: (i) any merger, consolidation, share exchange, business combination, or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of more than 25% of the assets of the Company in a single transaction or series of transactions; (iii) any tender offer or exchange offer for more than 25% of the Shares or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any person having acquired beneficial ownership or the right to acquire beneficial ownership of, or any "group" (as such term is defined under Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) having been formed which beneficially owns or has the right to acquire beneficial ownership of, more than 25% of the Shares.
Appears in 2 contracts
Samples: Merger Agreement (Kaplan Inc), Merger Agreement (Kaplan Inc)
No Solicitation of Competing Transactions. Neither (a) From the Company nor any Subsidiary shalldate hereof until the Closing or such earlier date on which this Agreement may be terminated in accordance with its terms, Seller shall not, and shall cause each of the Acquired Companies and Related Consolidated Entities and its and their respective Representatives not to, directly or indirectly: (a) initiate, through solicit, or encourage any officer or director proposal or any agent acting at the Company's authorization or direction, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action knowingly to facilitate, any inquiries about or the making of any proposal inquiry that the Company enter into any Competing Transaction (as defined below), or enter into, maintain or have discussions or negotiate with any person in furtherance of such inquiries or to obtain or seek to obtain a Competing Transaction, or agree to, recommend or endorse any Competing Transaction or withdraw or modify, or propose publicly to withdraw or modify, its recommendation set forth in Section 1.02(a) hereof, or authorize or permit any person to take any such action, and the Company shall notify Parent orally (within one (1) business day) and in writing (as promptly as practicable) after receipt by any officer or director of the Company or any Subsidiary or any investment banker, financial advisor, agent or attorney retained by the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or any of its Subsidiaries either in connection with such an inquiry or proposal or when such request for non-public information could may reasonably be expected to lead to any proposal concerning the sale of any Acquired Company or Related Consolidated Entity or any business thereof (whether by way of merger, purchase of equity interests, purchase of assets, or otherwise) or a sale of any material Assets of the Acquired Companies and Related Consolidated Entities, taken as a whole, or any transaction the consummation of which would be inconsistent with or interfere with or prevent, or materially delay, in any way whatsoever, the consummation of the Transactions (each, a “Competing Transaction”); or (b) hold any discussions or enter into any Contracts or other arrangements with, or provide any information or respond to, any third party concerning a proposed Competing Transaction or cooperate in any way with, agree to, assist or participate in, solicit, consider, entertain, facilitate, or encourage any effort or attempt by any third party to do or seek any of the foregoing. If at any time from the date hereof until the Closing, or such earlier date on which this Agreement may be terminated in accordance with its terms, Seller, any Affiliate thereof or any of its and their respective Representatives is approached in any manner by a proposal; providedthird party concerning a Competing Transaction, howeverSeller shall promptly, that nothing contained and in any event within three Business Days of such contact, inform such third party of the restrictions set forth in this Section 6.05 5.14.
(b) To the extent Seller and its Affiliates have not previously done so, Seller shall, or any other provision hereof shall prohibit cause its Affiliates to, promptly after the Board of Directors public announcement of the Company fromentry into this Agreement, request that each Person (iother than Buyer and its Representatives) at any time that has in the six months prior to the acceptance for payment by Purchaser date hereof executed a confidentiality agreement with Seller or its Affiliates in connection with its consideration of a Competing Transaction (the “Business NDAs”) to promptly return or destroy any confidential information to the extent related to the Business, the Acquired Companies or the Related Consolidated Entities furnished to such Person in connection with its consideration of a Competing Transaction in accordance with the terms of the Sharesapplicable Business NDA. To the extent Seller and its Affiliates have not previously done so, furnishing information Seller shall, or shall cause its Affiliates to, promptly after the date hereof, revoke the access of any Person other than Seller, Buyer and their respective Affiliates and Representatives to any data room established in connection with a Competing Transaction to the extent the information contained therein relates to the Business, the Acquired Companies or entering into discussions or negotiations withthe Related Consolidated Entities. Seller agrees not to release, and to cause its Affiliates not to release, any person that makes an unsolicitedthird party from the confidentiality provisions of any Business NDA and to enforce, bonaat Buyer’s expense, the confidentiality provisions of the Business NDAs (to the extent related to the Business, the Acquired Companies or the Related Consolidated Entities) to the extent reasonably requested by Buyer in writing.
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Davita Inc.)
No Solicitation of Competing Transactions. Neither the Company nor any Subsidiary shall, directly or indirectly, through any officer officer, director, agent or director or any agent acting at the Company's authorization or directionotherwise, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action knowingly to facilitatefacilitate knowingly, any inquiries about or the making of any proposal that the Company enter into any Competing Transaction (as defined below)Transaction, or enter into, into or maintain or have continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain or seek to obtain a Competing Transaction, or agree to, recommend to or endorse any Competing Transaction or withdraw or modify, modify or propose publicly to withdraw or modifymodify the approval or recommendation of the Board of Directors of this Agreement, its recommendation set forth in Section 1.02(a) hereofthe tender of Shares pursuant to the Share Exchange, the Merger or any other transaction contemplated hereby, or authorize or permit any person to take any such action, and the Company shall notify Parent orally (within one (1) business day) and in writing (as promptly as practicable) after receipt by any officer or director of the Company or any Subsidiary or any investment banker, financial advisor, agent advisor or attorney retained by the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public nonpublic information relating to the Company or any of its Subsidiaries either in connection with such an inquiry or proposal or when such request for non-public nonpublic information could reasonably be expected to lead to such a proposal; , provided, however, that nothing contained in this Section 6.05 or any other provision hereof shall prohibit the Board board of Directors directors of the Company from, from (i) at any time prior to the acceptance for payment by Purchaser of the Shares, furnishing information to, or entering into discussions or negotiations with, any person or entity that makes an unsolicited, bonabona fide written proposal for a Competing Transaction, if, and only to the extent that, (A) the board of directors of the Company, after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), determines in good faith that such action is necessary for the board of directors of the Company to comply with its fiduciary duties to stockholders under applicable law, and, solely with respect to entering into such discussions or negotiations, the board of directors of the Company determines in good faith, based on the written opinion of VRC or another nationally recognized financial advisor, that such
Appears in 2 contracts
Samples: Merger Agreement (Behrman Capital Ii Lp), Merger Agreement (Daleen Technologies Inc)
No Solicitation of Competing Transactions. Neither (a) From the Company nor any Subsidiary shalldate hereof until the Closing or such earlier date on which this Agreement may be terminated in accordance with its terms, the Sellers shall not, and shall cause each of their respective Affiliates, including the Conveyed Entities and its and their respective representatives not to, directly or indirectly: (a) initiate, through solicit, or encourage any officer or director proposal or any agent acting at the Company's authorization or direction, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action knowingly to facilitate, any inquiries about or the making of any proposal inquiry that the Company enter into any Competing Transaction (as defined below), or enter into, maintain or have discussions or negotiate with any person in furtherance of such inquiries or to obtain or seek to obtain a Competing Transaction, or agree to, recommend or endorse any Competing Transaction or withdraw or modify, or propose publicly to withdraw or modify, its recommendation set forth in Section 1.02(a) hereof, or authorize or permit any person to take any such action, and the Company shall notify Parent orally (within one (1) business day) and in writing (as promptly as practicable) after receipt by any officer or director of the Company or any Subsidiary or any investment banker, financial advisor, agent or attorney retained by the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or any of its Subsidiaries either in connection with such an inquiry or proposal or when such request for non-public information could may reasonably be expected to lead to such a proposal; provided, however, that nothing contained in this Section 6.05 any proposal concerning the sale of any of the Conveyed Entities or any other provision hereof shall prohibit the Board business thereof (whether by way of Directors merger, purchase of equity interests, purchase of assets, or otherwise) or a sale of any material assets of any of the Company fromConveyed Entities, or any transaction the consummation of which would be inconsistent with or interfere with or prevent, or materially delay, in any way whatsoever, the consummation of the Transactions (ieach, a “Competing Transaction”); or (b) hold any discussions or enter into any Contracts or other arrangements with, or provide any information or respond to, any third party concerning a proposed Competing Transaction or cooperate in any way with, agree to, assist or participate in, solicit, consider, entertain, facilitate, or encourage any effort or attempt by any third party to do or seek any of the foregoing. If at any time prior from the date hereof until the Closing, or such earlier date on which this Agreement may be terminated in accordance with its terms, any of the Sellers, any of their respective Affiliates (including the Conveyed Entities) or any of its and their respective representatives is approached in any manner by a third party concerning a Competing Transaction, Sellers shall promptly, and in any event within 48 hours, notify Buyer in writing of the such approach.
(b) To the extent the Sellers and its Affiliates have not previously done so, the Sellers shall, or shall cause their respective Affiliates (including the Conveyed Entities) to, promptly after the public announcement of the entry into this Agreement, request that each Person (other than Buyer and its representatives) that has executed a confidentiality agreement with any of the Sellers or its Affiliates (including any of the Conveyed Entities) in connection with its consideration of a Competing Transaction (the “Business NDAs”) to promptly return or destroy any confidential information to the acceptance for payment by Purchaser extent related to the Conveyed Entities furnished to such Person in connection with its consideration of a Competing Transaction in accordance with the terms of the Sharesapplicable Business NDA. To the extent the Sellers and their Affiliates have not previously done so, furnishing information the Sellers shall, or shall cause their respective Affiliates to, or entering into discussions or negotiations withpromptly after the date hereof, revoke the access of any Person other than the Sellers, Buyer and their respective Affiliates and representatives to any data room established in connection with a Competing Transaction to the extent the information contained therein relates to the Conveyed Entities. The Sellers agree not to release, and to cause their Affiliates not to release, any person that makes an unsolicited, bonathird party from the confidentiality provisions of any Business NDA and to enforce the confidentiality provisions of the Business NDAs (to the extent related to the Conveyed Entities) to the extent reasonably requested by Buyer.
Appears in 1 contract
No Solicitation of Competing Transactions. Neither (a) Except as expressly permitted in writing by the Company Investors, the Companies shall not, nor shall they authorize or permit any Subsidiary shallof the Subsidiaries or any of the Companies' or the Subsidiaries' directors, officers, employees, representatives, agents and advisors (including any investment banker, financial advisor, attorney, accountant or other representative retained by any of them), directly or indirectly, through any officer or director or any agent acting at the Company's authorization or directionto (i) solicit, initiate, solicit or knowingly encourage (including by way of furnishing non-public information nonpublic information), respond to (other than by bare statement, without any further detail or assistanceexplanation, that they are not permitted to respond), or take any other action knowingly designed to facilitate, any inquiries about or the making of any proposal that with respect to any merger, consolidation, transfer of substantial assets, sale or exchange of shares or similar transaction (except as set forth in Section 6.7 of the Company Disclosure Letter) (collectively, a "Competing Transaction"), (ii) participate in any substantive discussions or negotiations regarding any Competing Transaction or (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Competing Transaction (as defined below)Transaction. Upon execution of this Agreement, the Companies and the Subsidiaries shall immediately cease any existing activities, discussions or negotiations with any parties heretofore conducted with respect to any of the foregoing. Notwithstanding the foregoing, the Companies will not be precluded from providing information to, or enter intodiscussing, maintain or have discussions or negotiate with negotiating and executing agreements with, any person or entity that makes a written proposal pursuant to which such other person or entity would (i) make a significant equity investment in furtherance the Companies, (ii) acquire all or a substantial portion of the assets of the Companies or (iii) acquire the Companies, if and to the extent that the Boards of Directors of the Companies reasonably determine in good faith (after consultation with outside counsel) that they are required to do so by their fiduciary duties.
(b) The Companies shall promptly (but in any event within 24 hours) advise the Investors in writing of any inquiries, discussions, negotiations, proposals or requests for information received on or after the date of this Agreement relating to any Competing Transaction, the material terms and conditions thereof and the identity of the person making such inquiries request or Competing Transaction. The Companies shall promptly advise the Investors of any development relating to obtain any inquiries, discussions, negotiations, proposals or seek requests for information relating to obtain a Competing Transaction, whether the original inquiries, discussions, negotiations, proposals or agree torequests for information occurred before, recommend on or endorse after the date of this Agreement.
(c) If, prior to the Closing or during the 180-day period following any Competing Transaction termination of this Agreement, either of the Companies or withdraw any Subsidiary enters into any other agreement or modifyagreements with a third party (a "Third Party"), without the prior consent of the Investors, providing for the issuance of equity or propose publicly other securities convertible into or exchangeable or exercisable for equity, in one or a series of transactions, with aggregate net proceeds of at least $50 million or providing for or contemplating any merger, consolidation, transfer of substantial assets, any tender or exchange offer to withdraw acquire securities of the Companies or modifysimilar transaction involving the Companies (a "Third Party Agreement"), its recommendation and the 50 Companies shall have not have consummated the transactions contemplated hereby other than solely by reason of the Investors being unwilling to proceed with the Closing notwithstanding that the conditions to their obligations set forth in Section 1.02(aArticle V have been satisfied, the Companies agree to pay to the Investors within five business days after the entry by either of the Companies or any Subsidiary into any Third Party Agreement, in addition to any amounts otherwise provided hereunder, an aggregate amount (the "Breakup Fee") hereofin cash equal to $30 million; PROVIDED, that, if the Third Party is (a) Hilton Hotels Corporation ("Hilton"), (b) any subsidiary or affiliate of Hilton, (c) any financial advisor or financing source of Hilton or a subsidiary or affiliate thereof working on behalf of, or authorize with, Hilton in connection with the transactions contemplated by a Third Party Agreement or permit (d) any person entity that has an agreement, arrangement or understanding with Hilton or any of the foregoing, or any group including any of the foregoing, which agreement, arrangement or understanding provides for work on behalf of, or with, Hilton in connection with the transactions contemplated by a Third Party Agreement, the Third Party Agreement shall be deemed to take include not only those agreements set forth above but also any such action, agreement contemplating an asset purchase from or provision of financing to or financial support in favor of the Companies and the Company Breakup Fee shall notify Parent orally (within one (1be an amount in cash equal to $50 million; and provided further that the term "Third Party Agreement" shall not include any agreement that provides solely for the sale of any of the assets listed on Section 6.7(c) business day) and in writing (as promptly as practicable) after receipt by any officer or director of the Company or any Subsidiary or any investment banker, financial advisor, agent or attorney retained by Disclosure Letter. The Breakup Fee shall be paid as liquidated damages to the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information various Investors in accordance with their respective Investor Percentages. The Companies agree that (i) actual damages relating to the Company or any of its Subsidiaries either in connection foregoing are impossible to determine with certainty and (ii) such an inquiry or proposal or when such request for non-public information could reasonably be expected to lead to such sum is a proposal; provided, however, that nothing contained in this Section 6.05 or any other provision hereof shall prohibit the Board of Directors reasonable estimate of the Company fromInvestors' damages (and shall be deemed when paid, (i) at any time prior to together with the acceptance for payment by Purchaser of the Sharesfees contemplated by the Equity Commitment Letter and the reimbursement of expenses pursuant to Section 6.3, furnishing information toto have fully reimbursed the Investors for all such damages) arising from lost opportunities, or entering into discussions or negotiations with, any person that makes an unsolicited, bonaexecutive time and other causes.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wyndham International Inc)
No Solicitation of Competing Transactions. Neither the (a) The Company agrees that neither it nor any Subsidiary shallnor any Representative of it or any Subsidiary will, directly or indirectly, through any officer (i) solicit, initiate or director or any agent acting at the Company's authorization or direction, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistancenonpublic information), or take any other action knowingly to facilitatefor the purpose of facilitating, any inquiries about or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that the Company enter into constitutes, or may reasonably be expected to lead to, any Competing Transaction (as defined below), or (ii) enter into, participate in or maintain or have continue discussions or negotiate negotiations with any person in furtherance or entity for the purpose of facilitating such inquiries or to obtain a proposal or seek to obtain offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend or endorse any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment providing for or otherwise relating to any Competing Transaction, or (iv) authorize or permit any Representative of the Company or any of its Subsidiaries to take any such action. The Company shall notify Parent as promptly as practicable (and in any event within one business day) after the Company receives any oral or written proposal or offer or any inquiry or contact with any person regarding a potential proposal or offer regarding a Competing Transaction, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer (including material amendments or proposed material amendments). The Company immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or in the possession of any Representative of any such party. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the contrary in this Section 6.4, the Company Board may furnish information to, and enter into discussions with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Company Board has (i) determined, in its good faith judgment (after consulting with its financial advisor), that such proposal or offer constitutes or would be reasonably expected to lead to a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consulting with its outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such proposal or offer, the failure to furnish such information or enter into discussions would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, (iii) provided written notice to Parent of its intent to furnish information or enter into discussions with such person prior to taking any such action and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under this Agreement), except that such confidentiality agreement may permit such person to share Evaluation Material (as defined in the Confidentiality Agreement) with its financing sources; provided that such financing sources shall be bound by the terms thereof.
(c) Except as set forth in this Section 6.4(c) and subject to Section 8.1(e), neither the Company Board nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, its in a manner adverse to Parent or Merger Sub, the approval or recommendation set forth in Section 1.02(a) hereof, or authorize or permit any person to take any such action, and the Company shall notify Parent orally (within one (1) business day) and in writing (as promptly as practicable) after receipt by any officer or director of the Company or any Subsidiary or any investment banker, financial advisor, agent or attorney retained by the Company Board or any Subsidiary, such committee of any inquiry concerningthis Agreement or the Merger (a “Change in the Company Recommendation”) or approve or recommend, or proposal for, a Competing Transaction, cause or of any request for non-public information relating to permit the Company to enter into any letter of intent, agreement or obligation with respect to, any of its Subsidiaries either Competing Transaction (except for a confidentiality agreement as provided in connection with such an inquiry or proposal or when such request for non-public information could reasonably be expected to lead to such a proposal; providedSection 6.4(b) above). Notwithstanding the foregoing, however, that nothing contained in this Section 6.05 or any other provision hereof shall prohibit the Board of Directors of if the Company fromBoard determines, (i) in its good faith judgment at any time prior to the acceptance for payment by Purchaser approval of the SharesMerger by the holders of Shares after consulting with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), furnishing information tothat the failure to make a Change in the Company Recommendation would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law, the Company Board may make a Change in the Company Recommendation and/or recommend a Superior Proposal, but only (i) after providing written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions (including material amendments or entering into discussions proposed material amendments) of such Superior Proposal and identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation and (ii) if Parent does not, prior to five days after Parent’s receipt of the Notice of Superior Proposal make an offer that the Company Board determines, in its good faith judgment (after consulting with its financial advisor) to be at least as favorable to the Company’s stockholders as such Superior Proposal. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or negotiations withoffer for a Competing Transaction or otherwise in order to comply with its fiduciary duties under applicable Law or Rule 14d-9 or 14e-2, will not constitute a violation of this Agreement.
(d) A “Competing Transaction” means any of the following (other than the Merger): (i) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any Subsidiary; (ii) any sale, lease, exchange, transfer or other disposition of all or substantially all of the assets of the Company or of any Subsidiary; (iii) any sale, exchange, transfer or other disposition in which the Company or any Subsidiary participates (including by way of redeeming the Rights or taking any action to comply with Section 203 of the DGCL, but excluding typical stock transfer functions) and which results in any person that makes an unsolicitedbeneficially owning more than 25% of any class of equity securities of the Company or of any Subsidiary; (iv) any tender offer or exchange offer that, bonaif consummated, would result in any person beneficially owning more than 25% of any class of equity securities of the Company or of any Subsidiary; or (v) any transaction in which the Company participates which would result in any person owning 25% or more of the fair market value on a consolidated basis of the assets (including, without limitation, the capital stock or other equity interests of Subsidiaries) of the Company and its Subsidiaries immediately prior to such transaction (whether by purchase of assets, acquisition of stock of a Subsidiary or otherwise).
Appears in 1 contract
No Solicitation of Competing Transactions. (a) Neither ----------------------------------------- the Company nor any Subsidiary shall, directly or indirectly, through any officer officer, director, agent or director or any agent acting at the Company's authorization or directionotherwise, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action knowingly to facilitatefacilitate knowingly, any inquiries about or the making of any proposal that the Company enter into constitutes, or may reasonably be expected to lead to, any Competing Transaction (as defined below), or enter into, into or maintain or have continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain or seek to obtain a Competing Transaction, or agree to, recommend to or endorse any Competing Transaction or withdraw or modify, or propose publicly to withdraw or modify, its recommendation set forth in Section 1.02(a) hereofTransaction, or authorize or permit any person of the officers, directors or employees of the Company or any Subsidiary or any investment banker, financial advisor, attorney, accountant or other agent or representative of the Company or any Subsidiary to take any such action, and the Company shall notify Parent orally (within one (1) three business daydays) and in writing (as promptly as practicable) after receipt by of all of the relevant details relating to any officer inquiry or director of proposal which the Company or any Subsidiary or any such officer, director, employee, investment banker, financial advisor, attorney, accountant or other agent or attorney retained by representative may receive relating to any of such matters and which the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or and any of its Subsidiaries either in connection with officers or directors has knowledge of, and if such an inquiry or proposal is in writing, the Company shall deliver to Parent a copy of such inquiry or when such request for non-public information could reasonably be expected to lead to such a proposal; provided, however, that nothing contained in this Section 6.05 or any other provision hereof shall prohibit -------- ------- the Company or its Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer, (ii) referring any third party to this Section 6.05 or making a copy of this Section 6.05 available to any third party, or (iii) failing to make or withdrawing or modifying its recommendation referred to in Section 6.01(a) following the making of a proposal that constitutes, or may reasonably be expected to lead to, a Competing Transaction if the Board of Directors of the Company, after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), determines in good faith that such action is necessary for the directors of the Company to comply with their fiduciary duties to the Company or its stockholders under applicable law, or (iv) terminating this Agreement and the transactions contemplated hereby in accordance with Section 8.01(g) hereof. The Company agrees not to release any third party from, (i) at or waive any time prior provision of, any confidentiality or standstill agreement to which the acceptance for payment by Purchaser Company is a party. For purposes of this Agreement, "Competing Transaction" shall mean any of the Shares, furnishing information to, following involving the Company or entering into discussions or negotiations with, --------------------- any person that makes an unsolicited, bonaSubsidiary:
Appears in 1 contract
Samples: Merger Agreement (Unc Inc)
No Solicitation of Competing Transactions. Neither (a) Commencing on the Company nor date of this Agreement and ending with the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, the Seller shall not (and the Seller shall cause any Subsidiary shallRemaining Subsidiary, any entity Controlled by the Seller or any Remaining Subsidiary, and the officers, directors, employees, representatives and agents of the Seller and each of the Remaining Subsidiaries and each entity Controlled by the Seller or the Remaining Subsidiaries, including, but not limited to, investment bankers, attorneys and accountants, not to), (i) directly or indirectly, through any officer or director or any agent acting at the Company's authorization or direction, initiateencourage, solicit or knowingly encourage (including by way of furnishing non-public information facilitate any inquiries or assistance)proposals that constitute, or take would reasonably be expected to lead to, an Acquisition Proposal or (ii) participate in or initiate discussions or negotiations concerning, or provide any other action knowingly to facilitateinformation to, any inquiries about Person or group (other than Buyer, any of its Affiliates or representatives and agents) relating to, an Acquisition Proposal.
(b) Commencing on the date of this Agreement and ending with the earlier to occur of the Closing or the making termination of this Agreement in accordance with its terms, neither the Seller's Board of Directors nor any proposal that the Company enter into any Competing Transaction committee thereof shall (as defined below), or enter into, maintain or have discussions or negotiate with any person in furtherance of such inquiries or to obtain or seek to obtain a Competing Transaction, or agree to, recommend or endorse any Competing Transaction or i) withdraw or modify, or propose publicly to withdraw or modify, its in a manner adverse to the Buyer, the approval or recommendation set forth in Section 1.02(a) hereofby the Seller's Board of Directors or any committee thereof of the Stock Purchase, or authorize or permit any person to take any such action, this Agreement and the Company shall notify Parent orally related transactions described herein, (within one ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (1iii) business day) and enter into a letter of intent, agreement in writing (as promptly as practicable) after receipt by any officer or director of the Company or any Subsidiary or any investment bankerprinciple, financial advisor, agent or attorney retained by the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or any of its Subsidiaries either in connection with such an inquiry or proposal or when such request for non-public information could reasonably be expected to lead to such a proposal; provided, however, that nothing contained in this Section 6.05 acquisition agreement or any other provision hereof shall prohibit the Board of Directors of the Company from, (i) at agreement with respect to any time prior to the acceptance for payment by Purchaser of the Shares, furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited, bonaAcquisition Proposal.
Appears in 1 contract
No Solicitation of Competing Transactions. (a) Neither the Company nor any Subsidiary shall, directly or indirectly, through any officer officer, director, agent or director or any agent acting at the Company's authorization or directionotherwise, initiate, solicit or knowingly encourage (including by way of furnishing non-public nonpublic information or assistance), or take any other action knowingly to facilitatefacilitate knowingly, any inquiries about or the making of any proposal that the Company enter into constitutes, or may reasonably be expected to lead to, any Competing Transaction (as defined below), or enter into, into or maintain or have continue discussions or negotiate with any person or entity in furtherance of such inquiries inquires or to obtain or seek to obtain a Competing Transaction, or agree to, recommend to or endorse any Competing Transaction or withdraw or modify, or propose publicly to withdraw or modify, its recommendation set forth in Section 1.02(a) hereofTransaction, or authorize or permit any person of the officers, directors or employees of the Company or any Subsidiary or any investment banker, financial advisor, attorney, accountant or other agent or representative the Company or any Subsidiary to take any such action, and the Company shall notify Parent orally (within one (1) three business daydays) and in writing (as promptly as practicable) after receipt by of all of the relevant details relating to any officer inquiry or director of proposal which the Company or any Subsidiary or any such officer, director, employee, investment banker, financial advisor, attorney, accountant or other agent or attorney retained by representative may receive relating to any of such matters and which the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or and any of its Subsidiaries either in connection with officers or directors has knowledge of, and if such an inquiry or proposal is in writing, the Company shall deliver to Parent a copy of such inquiry or when such request for non-public information could reasonably be expected to lead to such a proposal; provided, however, that nothing contained in this Section 6.05 shall prohibit the Company or its Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer, (ii) referring any third party to this Section 6.05 or making a copy of this Section 6.05 available to any third party, or (iii) failing to make or withdrawing or modifying its recommendation referred to in Section 6.01(a) following the making of a proposal that constitutes, or may reasonably be expected to lead to, a Competing Transaction if the Board of Directors of the Company, after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), determines in good faith that such action is necessary for the directors of the Company to comply with their fiduciary duties to the Company or its stockholders under applicable law, or (iv) terminating this Agreement and the transactions contemplated hereby in accordance with Section 8.01(g) hereof. The Company agrees not to release any third party from, or waive any provision of, any confidentiality or standstill agreement to which the Company is a park. For purposes of this Agreement, Competing Transaction. shall mean any of the following involving the Company or any Subsidiary: (i) any merger, consolidation, share exchange, recapitalization, business combination, or other provision hereof shall prohibit similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 15% or more of the assets of the Company and the Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for 15% or more of the shares of Company Class A Stock or Company Class B Stock or the filing of a registration statement under the Securities Act in connection therewith; (iv) any person having acquired beneficial ownership or the right to acquire beneficial ownership of, or any group. (as such term is defined under Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) having been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the shares of Company Class A Stock or Company Class B Stock; or (v) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.
(b) Provided that there has been no breach of Section 6.05(a) which materially and adversely affects the rights of Parent contained herein or in the Option and Voting Agreement, if the Board of Directors of the Company fromdetermines that it has received a Superior Proposal (as defined below), the Board of Directors may cause the Company to give to Parent a notice (ia "Superior Proposal Notices") at any time prior of its intent to accept such Superior Proposal and the acceptance for payment by Purchaser giving of the Shares, furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited, bonasuch notice shall not be a breach of this Agreement. The Board of Directors of the
Appears in 1 contract
No Solicitation of Competing Transactions. Neither (a) Except for the Company nor any Subsidiary shallContemporaneous Ancillary Transactions, each of the Selling Entities agrees that it shall not, and it shall cause its and their respective Affiliates and Representatives not to, directly or indirectly, through any officer or director or any agent acting at the Company's authorization or direction: (i) solicit, initiate, solicit encourage, take any action to facilitate or knowingly encourage induce any inquiry with respect to, or the making, submission or announcement of, any proposal or offer (including by way any proposal or offer to the Company Shareholders) that constitutes or may reasonably be expected to lead to, any Competing Transaction, (ii) furnish to any Person other than Parent or its Representatives any information with respect to any Competing Transaction, (iii) participate in or engage in discussions or negotiations with any Person with respect to any Competing Transaction, except to notify such Person as to the existence of furnishing non-public information these provisions, (iv) approve, endorse or assistance)recommend any Competing Transaction, or take (v) enter into any other action knowingly letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to facilitateany Competing Transaction or a transaction contemplated thereby. To the extent they have not previously done so, each of the Selling Entities shall and shall cause their respective Affiliates and Representatives to immediately cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Each of the Selling Entities shall not release any third party from, or waive any provision of, any inquiries about confidentiality or standstill agreement to which it is a party.
(b) Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in Section 10.3(a) by any Representative of any of the Selling Entities, whether or not such Person is purporting to act on behalf of such Persons, shall be a breach of this Section 10.3 by the Selling Entities.
(c) As promptly as practicable, and in any event within twenty-four hours, after receipt of any inquiry, any request for information, or the making of any proposal or offer that the Company enter into any Competing Transaction (as defined below), or enter into, maintain or have discussions or negotiate with any person in furtherance of such inquiries or to obtain or seek to obtain a Competing Transaction, or agree to, recommend or endorse any Competing Transaction or withdraw or modify, or propose publicly to withdraw or modify, its recommendation set forth in Section 1.02(a) hereof, or authorize or permit any person to take any such action, and the Company shall notify Parent orally (within one (1) business day) and in writing (as promptly as practicable) after receipt by any officer or director of the Company or any Subsidiary or any investment banker, financial advisor, agent or attorney retained by the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or any of its Subsidiaries either in connection with such an inquiry or proposal or when such request for non-public information could reasonably be expected to lead to such a proposal; providedany Competing Transaction, however, that nothing contained in this Section 6.05 or any other provision hereof the Selling Entities shall prohibit the Board of Directors provide Parent with oral and written notice of the Company frommaterial terms and conditions of such inquiry, (i) at any time prior to request, proposal or offer and the acceptance for payment by Purchaser identity of the SharesPerson or group making any such inquiry, furnishing information torequest, proposal or entering into discussions offer, a copy of all written materials provided in connection with such inquiry, request, proposal or negotiations withoffer and a written summary of any such inquiry, any person that makes an unsolicitedrequest, bonaproposal or offer, if it is not in writing.
Appears in 1 contract
Samples: Purchase Agreement (Oakley Inc)
No Solicitation of Competing Transactions. (a) Neither the Company nor any Subsidiary shall, directly or indirectly, through any officer officer, director, agent or director or any agent acting at the Company's authorization or directionotherwise, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action knowingly to facilitatefacilitate knowingly, any inquiries about or the making of any proposal that the Company enter into constitutes, or may reasonably be expected to lead to, any Competing Transaction (as defined below), or enter into, into or maintain or have continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain or seek to obtain a Competing Transaction, or agree to, recommend to or endorse any Competing Transaction or withdraw or modify, or propose publicly to withdraw or modify, its recommendation set forth in Section 1.02(a) hereofTransaction, or authorize or permit any person of the officers, directors or employees of the Company or any Subsidiary or any investment banker, financial advisor, attorney, accountant or other agent or representative of the Company or any Subsidiary to take any such action, and the Company shall notify Parent orally (within one (1) three business daydays) and in writing (as promptly as practicable) after receipt by of all of the relevant details relating to any officer inquiry or director of proposal which the Company or any Subsidiary or any such officer, director, employee, investment banker, financial advisor, attorney, accountant or other agent or attorney retained by representative may receive relating to any of such matters and which the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or and any of its Subsidiaries either in connection with officers or directors has knowledge of, and if such an inquiry or proposal is in writing, the Company shall deliver to Parent a copy of such inquiry or when such request for non-public information could reasonably be expected to lead to such a proposal; provided, however, that nothing contained in this Section 6.05 or any other provision hereof shall prohibit the Company or its Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer, (ii) referring any third party to this Section 6.05 or making a copy of this Section 6.05 available to any third party, or (iii) failing to make or withdrawing or modifying its recommendation referred to in Section 6.01(a) following the making of a proposal that constitutes, or may reasonably be expected to lead to, a Competing Transaction if the Board of Directors of the Company, after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), determines in good faith that such action is necessary for the directors of the Company to comply with their fiduciary duties to the Company or its stockholders under applicable law, or (iv) terminating this Agreement and the transactions contemplated hereby in accordance with Section 8.01(g) hereof. The Company agrees not to release any third party from, (i) at or waive any time prior to the acceptance for payment by Purchaser of the Shares, furnishing information to, or entering into discussions or negotiations withprovision of, any person that makes an unsolicited, bonaconfidentiality or standstill agreement to which the
Appears in 1 contract
No Solicitation of Competing Transactions. Neither (a) Except as expressly permitted in writing by the Company nor Investors, none of the Companies shall authorize or permit any Subsidiary shallof their Subsidiaries or any of the Companies' or the Subsidiaries' directors, officers, employees, representatives, agents and advisors (including any investment banker, financial advisor, attorney, accountant or other representative retained by any of them), directly or indirectlyindirectly to, through any officer or director or any agent acting at the Company's authorization or direction(i) solicit, initiate, solicit or knowingly encourage (including by way of furnishing non-public information nonpublic information), respond to (other than by bare statement, without any further detail or assistanceexplanation, that they are not permitted to respond), or take any other action knowingly designed to facilitate, any inquiries about or the making of any proposal that the Company with respect to any merger, consolidation, transfer of substantial assets, sale or exchange of shares or similar transaction (collectively, a "Competing Transaction"), (ii) participate in any substantive discussions or negotiations regarding any Competing Transaction or (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Competing Transaction (as defined below)Transaction. Upon execution of this Agreement, each of the Companies and the Subsidiaries shall immediately cease any existing activities, discussions or negotiations with any parties heretofore conducted with respect to any of the foregoing. Notwithstanding the foregoing, none of the Companies will be precluded from providing information to, or enter intodiscussing, maintain or have discussions or negotiate with negotiating and executing agreements with, any person or entity that makes a written proposal pursuant to which such other person or entity would (i) make a significant equity investment in furtherance one or more of the Companies, (ii) acquire all or a substantial portion of the assets of one or more the Companies or (iii) acquire one or more of the Companies, if and to the extent that its Board of Directors reasonably determines in good faith (after consultation with outside counsel) that they are required to authorize such inquiries actions by their fiduciary duties.
(b) Each of the Companies shall promptly (but in any event within 24 hours) advise the Investors in writing of any inquiries, discussions, negotiations, proposals or requests for information received on or after the date of this Agreement relating to obtain any Competing Transaction, the material terms and conditions thereof and the identity of the person making such request or seek Competing Transaction. Each of the Companies shall promptly advise the Investors of any development relating to obtain any inquiries, discussions, negotiations, proposals or requests for information relating to a Competing Transaction, whether the original inquiries, discussions, negotiations, proposals or agree torequests for information occurred before, recommend on or endorse after the date of this Agreement.
(c) The Investors shall have the right to match the material terms and conditions of any Competing Transaction within five (5) business days after receiving notice in writing from the Companies of such Competing Transaction. If the Investors give notice of their intention to match such Competing Transaction, the Companies shall promptly amend this Agreement to reflect the revised terms and shall cease discussions with the other third party in accordance with the provisions of Section 7.6(a) herein.
(d) If, prior to the Initial Closing or withdraw during the one-year period following any termination of this Agreement, either of the Companies or modifyany Subsidiary enters into any other agreement or agreements with a third party (a "Third Party"), without the prior written consent of the Investors, providing for the issuance of equity or propose publicly other securities convertible into or exchangeable or exercisable for equity, in one or a series of transactions, with aggregate net proceeds of at least $100 million or providing for or contemplating any merger, consolidation, transfer or substantial assets, any tender or exchange offer to withdraw acquire securities of the Companies or modifysimilar transaction involving the Companies (a "Third Party Agreement"), its recommendation and the Companies shall not have consummated the transactions contemplated hereby other than solely by reason of the Investors being unwilling to proceed with the Initial Closing notwithstanding that the conditions to their obligations set forth in Section 1.02(a) hereofArticle V have been satisfied, or authorize or permit any person the Companies jointly and severally agree to take any such action, and pay to the Company shall notify Parent orally (within one (1) business day) persons and in writing the respective proportions set forth on Schedule 7.3(b), in addition to any amounts otherwise provided hereunder, an aggregate amount (as promptly as practicablethe "Breakup Fee") after receipt by any officer or director of in cash equal to $7.5 million if the Company Companies or any Subsidiary or enter into any investment banker, financial advisor, agent or attorney retained by Third Party Agreement within five (5) business days after the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information entry into the Third Party Agreement. The Breakup Fee shall be paid as liquidated damages to the various Investors in accordance with their respective Investor percentages. The Companies agree that (i) actual damages relating to the Company or any of its Subsidiaries either in connection foregoing are impossible to determine with certainty and (ii) such an inquiry or proposal or when such request for non-public information could reasonably be expected to lead to such sum is a proposal; provided, however, that nothing contained in this Section 6.05 or any other provision hereof shall prohibit the Board of Directors reasonable estimate of the Company fromInvestors' damages (and shall be deemed when paid, (i) at any time prior to together with the acceptance for payment by Purchaser of the Sharesfees contemplated by the Commitment Letter and the reimbursement of expenses pursuant to Section 7.3 herein, furnishing information toto have fully reimbursed the Investors for all such damages) arising from lost opportunities, or entering into discussions or negotiations with, any person that makes an unsolicited, bonaexecutive time and other causes.
Appears in 1 contract
Samples: Securities Purchase Agreement (Prison Realty Trust Inc)
No Solicitation of Competing Transactions. Neither (a) Joule (acting through the Company nor any Subsidiary shallBoard of Directors, the special committee of the Board of Directors formed to review and consider the Merger proposal (the "Special Committee") or otherwise) shall not, directly or indirectly, through any officer representative or director or any agent acting at the Company's authorization or directionotherwise, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistanceinformation), or take any other action knowingly to facilitate, any inquiries about or the making of any proposal that the Company enter into constitutes, or may reasonably be expected to lead to, any Competing Transaction (as defined below), or enter into, into or maintain or have continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain or seek to obtain a Competing Transaction, or agree to, recommend to or endorse any Competing Transaction or withdraw or modify, or propose publicly to withdraw or modify, its recommendation set forth in Section 1.02(a) hereofTransaction, or authorize or permit any person of its representatives to take any such action, and the Company shall notify Parent orally (within one (1) business day) and in writing (as promptly as practicable) after receipt by any officer or director of the Company or any Subsidiary or any investment banker, financial advisor, agent or attorney retained by the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or any of its Subsidiaries either in connection with such an inquiry or proposal or when such request for non-public information could reasonably be expected to lead to such a proposal; provided, however, that nothing contained in this Section 6.05 the foregoing shall not prohibit the Special Committee or any other provision hereof shall prohibit the Board of Directors of (acting through the Company fromSpecial Committee) (either directly or indirectly through advisors, agents or other intermediaries) from (i) furnishing information in writing or orally (through Joule's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to JAC) concerning Joule and its businesses, properties or assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than JAC (a "Third Party"), in response to any unsolicited inquiry, proposal or offer, (ii) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, (iii) following receipt of a bona fide proposal relating to a Competing Transaction, taking and disclosing to Joule's stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders with respect to such proposal, (iv) following receipt of a bona fide proposal relating to a Competing Transaction, withdrawing or modifying its recommendation of this Merger Agreement, and/or (v) terminating this Merger Agreement, but in each case referred to in the foregoing clauses (iii) through (v) only to the extent that the Special Committee shall have concluded in good faith after consultation with counsel that such action is consistent with the Board of Directors' fiduciary duties to the stockholders of Joule under applicable law.
(b) At all times prior to the Effective Time, the parties shall immediately notify one another upon receipt of a proposal for a Competing Transaction.
(c) For purposes of this Agreement, "Competing Transaction" shall mean any of the following involving Joule (other than the Merger and the other transactions contemplated by this Agreement): (i) any merger, consolidation, share exchange, business combination, issuance or purchase of securities or other similar transaction, (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of the assets of Joule in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for Joule's securities or the filing of a registration statement under the Securities Act of 1933, as amended, in connection with any such exchange offer; (iv) any solicitation in opposition to approval by the stockholders of Joule of this Agreement; or (v) any announcement of an agreement, proposal, plan or intention to do any of the foregoing, either during the effectiveness of this Agreement or at any time prior to the acceptance for payment by Purchaser of the Shares, furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited, bonathereafter.
Appears in 1 contract
Samples: Merger Agreement (Joule Inc)
No Solicitation of Competing Transactions. Neither the (a) The Company agrees that neither it nor any Subsidiary shallnor any Representative of it or any Subsidiary will, directly or indirectly, through any officer (i) solicit, initiate or director or any agent acting at the Company's authorization or direction, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistancenonpublic information), or take any other action knowingly to facilitatefor the purpose of facilitating, any inquiries about or the making of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) that the Company enter into constitutes, or may reasonably be expected to lead to, any Competing Transaction (as defined below), or (ii) enter into, participate in or maintain or have continue discussions or negotiate negotiations with any person in furtherance or entity for the purpose of such inquiries obtaining a proposal or to obtain or seek to obtain offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend or endorse any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment providing for or otherwise relating to any Competing Transaction, or (iv) authorize or permit any Representative of the Company or any of its Subsidiaries to take any such action. The Company shall notify Acquiror as promptly as practicable (and in any event within one business day) after the Company receives any unsolicited oral or written proposal or offer or any inquiry or contact from any person regarding a potential proposal or offer of a Competing Transaction, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer (including any amendments or changes thereto). The Company immediately shall cease and terminate all existing discussions or negotiations with respect to a Competing Transaction.
(b) Notwithstanding anything to the contrary in this Section 6.4, the Board or the Special Committee may furnish information to, and enter into discussions with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Board or the Special Committee has (i) determined, in its good faith judgment (after consulting with its financial advisor), that such proposal or offer constitutes or would be reasonably expected to lead to a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consulting with its outside legal counsel that, in light of such proposal or offer, the failure to furnish such information or enter into discussions would be inconsistent with its fiduciary duties to the shareholders of the Company under applicable Law, and (iii) provided written notice to Acquiror of its intent to furnish information or enter into discussions with such person prior to taking any such action.
(c) Except as set forth in this Section 6.4(c) and subject to Section 8.1(e), neither the Board nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, its in a manner adverse to Acquiror, the approval or recommendation set forth by the Board or any such committee of this Agreement, the Merger or the Transactions (a “Change in Section 1.02(athe Company Recommendation”) hereofor approve or recommend, or authorize cause or permit any person to take any such action, and the Company shall notify Parent orally (within one (1) business day) and in writing (as promptly as practicable) after receipt by to enter into any officer letter of intent, agreement or director of the Company or any Subsidiary or any investment banker, financial advisor, agent or attorney retained by the Company or any Subsidiary, of any inquiry concerning, or proposal for, a Competing Transaction, or of any request for non-public information relating to the Company or any of its Subsidiaries either in connection obligation with such an inquiry or proposal or when such request for non-public information could reasonably be expected to lead to such a proposal; provided, however, that nothing contained in this Section 6.05 or any other provision hereof shall prohibit the Board of Directors of the Company from, (i) at any time prior to the acceptance for payment by Purchaser of the Shares, furnishing information respect to, or entering into discussions or negotiations with, any person that makes an unsolicited, bonaCompeting
Appears in 1 contract
Samples: Merger Agreement (MPW Industrial Services Group Inc)
