No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary. (b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party). (c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction. (d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 5 contracts
Samples: Master Transaction Agreement (Cig Media LLC), Master Transaction Agreement (Ion Media Networks Inc.), Master Transaction Agreement (Ion Media Networks Inc.)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toshall, directly or indirectly, (i) through any officer, director, agent or otherwise, solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making submission of any proposal or offer (including, without limitation, from any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract person relating to any Competing Transaction acquisition or (iv) authorize purchase of all or permit any material portion of the officersassets of, directors or employees any equity interest in (other than pursuant to the exercise of options outstanding on the date hereof), the Company or any of its Subsidiaries, Subsidiary or any investment bankermerger, financial advisorconsolidation, attorneybusiness combination, accountant reorganization, recapitalization or other representative retained by similar transaction involving the Company or any Subsidiary (each a "Competing Transaction") or participate in any discussions or negotiations regarding, or furnish to any other person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person to do or seek any of its Subsidiaries, to take any such actionthe foregoing. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity each of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately Subsidiaries will cease and cause to be terminated any existing activities, discussions or negotiations by or on its behalf with any Person that may have been other person conducted heretofore with respect to a any Competing TransactionTransaction and will promptly notify Parent following receipt of any request by any person relating to any possible Competing Transaction or information concerning the Company. The Company shall agrees that it will not release disclose any Person from, of the terms of this Agreement or waive the matters referred to herein to any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf other prospective acquiror of the Company until the Effective Time or any Subsidiary.
(b) Notwithstanding anything earlier if this Agreement is terminated in accordance with its terms, except to the contrary extent such disclosure is contemplated by this Agreement or is otherwise required by law or the regulations of the Nasdaq Stock Market. Nothing contained in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, 6.04 shall prohibit the Board may furnish from furnishing 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 has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions or negotiations with, any person in connection with an unsolicited (from the date of this Agreement) proposal involving a fully-financed (as represented by such person) Competing Transaction which is made in writing by such person and which, if consummated, would provide consideration per Share to the shareholders of the Company in excess of the Per Share Amount (a "Superior Proposal"), if, and only to the extent that, the Board determines in good faith, based upon the advice of SG Cxxxx xxx the written advice of Straxxxxx Xxxcx Xxxlxxx & Xautx, xxat such action is required for the Board to comply with its fiduciary obligations duties to the Company and its stockholders shareholders under applicable Delaware Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 5 contracts
Samples: Merger Agreement (Healey William L), Merger Agreement (Smartflex Systems Inc), Merger Agreement (Ssi Acquisition Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willshall, and that it will shall cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any each Company Subsidiary) 's Representatives not to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourage otherwise facilitate (including by way of furnishing nonpublic information), or take any other action to facilitate, ) any inquiries or the making of any proposal proposal, or offer (includingwith respect to a merger, without limitationreorganization, any proposal share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or offer to its stockholders) that constitutessimilar transaction involving, or may any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to lead interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Competing TransactionPerson in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) enter or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or maintain data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or continue data to any Person or entering into discussions or negotiations with any Person in furtherance Person, the Company's Board of Directors notifies IHK promptly of such inquiries inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to obtain a proposal be initiated or offer for a Competing Transactioncontinued with, (iii) agree tothe Company, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company Subsidiary or any of its Subsidiariestheir Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such actionoffers. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by agrees that it or any Subsidiary) to, will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transactionany Acquisition Proposal. The Company agrees that it shall not release keep IHK informed, on a current basis, of the status and terms of any Person from, such proposals or waive any provision of, any confidentiality or standstill agreement to which it is a party offers and the status of any such discussions or negotiations.
(b) The Company also agrees that it will take the necessary steps to promptly request inform each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf Subsidiary and each Representative of the Company or any Subsidiary.
(b) Notwithstanding anything to Company Subsidiary of the contrary obligations undertaken in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)6.05.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 5 contracts
Samples: Merger Agreement (Imperial Holly Corp), Merger Agreement (Savannah Foods & Industries Inc), Merger Agreement (Imperial Holly Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willshall not, and that it will shall cause its affiliates and its and its Subsidiaries’ agentsaffiliates' officers, advisors directors, employees, financial advisors, consultants, attorneys, accountants, agents and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiarythe "Company Representatives") not to, directly or indirectly, (i) take any action to solicit, initiate initiate, encourage or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or facilitate the making of any proposal Acquisition Proposal or offer (including, without limitation, any proposal inquiry with respect thereto or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue engage in discussions or negotiations with any Person person with respect thereto or in furtherance connection with any Acquisition Proposal or potential Acquisition Proposal, disclose any nonpublic information relating to it or the Company Subsidiaries or afford access to the properties, books or records of such inquiries it or the Company Subsidiaries to any person that has made, or to obtain a proposal or offer for a Competing Transactionsuch party's knowledge, (iii) agree tois considering making, any Acquisition Proposal, approve or endorse recommend, or propose to approve or recommend, any Competing Transaction Acquisition Proposal or approve or recommend, or propose to approve or recommend, or execute or enter into into, any letter of intent intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other Contract relating similar agreement or propose to any Competing Transaction or (iv) authorize or permit do any of the officersforegoing; provided, directors however, that, in the event that (x) the Company shall receive an Acquisition Proposal that the Board of Directors of the Company concludes in good faith could result in a Superior Proposal that was not solicited by it and did not otherwise result from a breach of this Section 7.04, (y) prior to receipt of the Requisite Shareholder Approval, the Board of Directors of the Company determines in good faith, after receiving the advice of outside legal counsel, that, in light of this Acquisition Proposal, the Board of Directors is required by its fiduciary duties under the Ohio Law to authorize the Company to participate in such discussions or employees negotiations with, or provide such information to, the party making the Acquisition Proposal, and (z) the Company gives Parent written notice of its intention to do so, the Company may (i) furnish information with respect to it and the Company Subsidiaries to the person making such Acquisition Proposal pursuant to a customary confidentiality agreement on terms no less favorable to the Company than those contained in the Letter Agreement and (ii) participate in discussions regarding such Acquisition Proposal. Any violation of the foregoing restrictions by the Company Representatives, whether or not such person is so authorized and whether or not any such person is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Agreement by the Company.
(b) Upon receiving an Acquisition Proposal, the Company will promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal) notify Parent, after receipt of any Acquisition Proposal or any amendment or change in any previously received Acquisition Proposal, or any request for nonpublic information relating to the Company or any Company Subsidiary or for access to the properties, books or records of the Company or any of its SubsidiariesCompany Subsidiary by any person that has made, or to such party's knowledge may be considering making, an Acquisition Proposal, and shall promptly provide copies of any investment bankerproposals, financial advisorindications of interest, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, draft agreements and correspondence relating to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments)Acquisition Proposal. The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) the Company Representatives to, immediately cease and cause to be terminated any all discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiarynegotiations, if any, that have taken place prior to the date hereof with any persons (other than Parent) with respect to any Acquisition Proposal and shall request the return (or if permitted by the applicable confidentiality agreement, destroy) destruction of all confidential information heretofore furnished provided to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee person. The Company agrees not to release any third party from the confidentiality and standstill provisions of the Transaction Agreements any agreement to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactionparty.
(dc) The parties acknowledge and agree Company agrees that nothing contained herein shall affect or it will take the necessary steps promptly to inform the Company Representatives of the obligations undertaken in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Actthis Section 7.04.
Appears in 4 contracts
Samples: Merger Agreement (Medplus Inc /Oh/), Merger Agreement (Medplus Inc /Oh/), Merger Agreement (Medplus Inc /Oh/)
No Solicitation of Transactions. (a) The Company agrees that that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, neither it nor any Company Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willshall, and that it will shall cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any each Company Subsidiary) 's Representatives not to, except as contemplated by this Agreement, directly or indirectly, (i) solicitinitiate, initiate solicit or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets of the Company (includingincluding the sale of either of the Company's refineries or any of its terminals) and the Company Subsidiaries, without limitationtaken as a whole, or 15% or more of the equity securities of the Company (any such proposal or offer being hereinafter referred to as a "Competing Transaction"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its stockholders) that constitutesand each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to the Company or any Company Subsidiary to any person relating to a Competing Transaction or engage in any negotiations concerning a Competing Transaction, or may reasonably be expected otherwise facilitate any effort or attempt to lead make or implement a Competing Transaction or accept a Competing Transaction; provided, however, that nothing contained in this Section 6.04 shall prevent the Company or the Company Board from (i) engaging in any discussions or negotiations with, or providing any information to, any person in response to an unsolicited written Competing Transaction, Transaction by any such person; or (ii) enter recommending such an unsolicited written Competing Transaction to the holders of Company Common Stock if, in any such case as is referred to in clause (i) or (ii), (A) the Company Board concludes in good faith (after consultation with independent financial advisors) that such Competing Transaction would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Competing Transaction being referred to in this Agreement as a "Superior Proposal"), (B) either the Company Board or the Company Independent Committee determines in good faith after consultation with independent legal counsel that such action is necessary for the Company Board to act in a manner consistent with its fiduciary duties under applicable Law, (C) prior to providing any information or data regarding the Company to any person or any of such person's Representatives in connection with a Superior Proposal by such person, the Company receives from such person an executed confidentiality agreement on terms at least as restrictive on such person as those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any person or any of such person's Representatives or entering into or maintain or continue discussions or negotiations with any Person in furtherance person or any of such inquiries or to obtain person's Representatives in connection with a Superior Proposal by such person, the Company notifies Parent promptly of the receipt of such Superior Proposal indicating, in connection with such notice, the name of such person and attaching a copy of the proposal or offer for or providing a Competing Transactioncomplete written summary thereof. The Company agrees that it shall keep Parent informed, (iii) agree toon a current basis, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors status and terms of any discussions or employees negotiations related to such Superior Proposal. The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of its Subsidiariesthe obligations undertaken in this Section 6.04. Immediately following the execution of this Agreement, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG terminate and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after cause the Company attains knowledge thereof)Subsidiaries to terminate any existing activities, orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person third parties that may have been conducted heretofore be ongoing with respect to a any Competing TransactionTransaction and promptly after the public announcement of the execution of this Agreement shall use all reasonable efforts to request that all confidential information previously furnished to any such third parties be returned promptly. The Company Nothing contained in this Agreement shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) prohibit the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company Board from taking or any Subsidiary.
(b) Notwithstanding anything disclosing to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iiia position contemplated by Rules 14d-9 and 14e-(2)(a) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 promulgated under the Exchange Act.
Appears in 4 contracts
Samples: Merger Agreement (Rosemore Inc), Merger Agreement (Crown Central Petroleum Corp /Md/), Merger Agreement (Rosemore Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Section 5.6.1 None of the directors, officers or employees of it Company or any Company Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toshall, directly or indirectly, take (iand the Company shall not authorize or permit the Company Representatives or, to the extent within the Company’s control, other affiliates to take) solicit, initiate or any action to (A) encourage (including by way of furnishing nonpublic non-public information), solicit, initiate or facilitate any Acquisition Proposal, (B) enter into any agreement with respect to any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement or (C) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate, facilitate any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may could reasonably be expected to lead to, any Competing TransactionAcquisition Proposal; provided, however, that if, at any time prior to the obtaining of the Company’s stockholders’ approval of the Merger, the Receiver determines in good faith, after consultation with outside counsel, that it would otherwise constitute a breach of the Receiver’s fiduciary duties to stockholders, the Company may, in response to a Superior Proposal and subject to the Company’s compliance with Section 5.4 and Section 5.6.2, (iix) enter into or maintain or continue furnish information with respect to the Company and the Company Subsidiaries to the person making such Superior Proposal pursuant to a customary confidentiality agreement the benefits of the terms of which are no more favorable to the other party to such confidentiality agreement than those in place with Parent and (y) participate in discussions with respect to such Superior Proposal. Upon execution of this Agreement, the Company shall cease immediately and cause to be terminated any and all existing discussions or negotiations with any Person in furtherance of such inquiries or parties conducted heretofore with respect to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees an Acquisition Proposal and promptly request that all confidential information with respect thereto furnished on behalf of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. be returned.
Section 5.6.2 The Company shall notify CIG and the NBCU Entities shall, as promptly as practicable (and in any no event within one (1) Business Day later than 24 hours after the Company attains knowledge receipt thereof), orally advise Parent of any inquiry received by it relating to any potential Acquisition Proposal and in writing, if of the material terms of any proposal or offerinquiry, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and including the identity of the party person and its affiliates making the same, that it may receive in respect of any such potential Acquisition Proposal, or of any information requested from it or of any negotiations or discussions being sought to be initiated with it, shall furnish to Merger Sub a copy of any such proposal or offer inquiry, if it is in writing, or inquiry a written summary of any such proposal or contact (including material amendments or proposed material amendments). The Company shallinquiry, if it is not in writing and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore keep Parent fully informed on a prompt basis with respect to a Competing Transaction. any developments with respect to the foregoing.
Section 5.6.3 The Company Receiver shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwiseA) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to CIG and the NBCU EntitiesParent, the approval or recommendation by the Board or any such committee Receiver of the Transaction Agreements adoption and approval of the Merger (the “Company Recommendation”) and the matters to which be considered at the Company is a party and Stockholders’ Meeting, (B) other than the TransactionMerger, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (C) other than the Merger, cause or permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement or obligation other similar agreement related to any Acquisition Proposal. Nothing contained in this Section 5.6.3 shall prohibit the Company (x) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or (y) in the event that a Superior Proposal is made and the Receiver determines in good faith, after consultation with respect tooutside counsel, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect it would otherwise constitute a breach of its fiduciary duty to stockholders, from withdrawing or in any way interfere with modifying its recommendation of the Company’s Obligation Merger no earlier than five business days following the day of delivery of written notice to Parent of its intention to do so, so long as the Company continues to comply with Rule 14d-9 under all other provisions of this Agreement including, without limitation, Section 5.4 hereof.
Section 5.6.4 Upon execution of this Agreement, paragraph 1 of the Exchange ActExclusivity Agreement shall terminate and be of no further force and effect.
Appears in 3 contracts
Samples: Merger Agreement (Arthrocare Corp), Merger Agreement (Arthrocare Corp), Merger Agreement (Medical Device Alliance Inc)
No Solicitation of Transactions. (a) The Subject to Section 5.4(b), from and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 7, the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willshall not, and that it will shall cause its the Company Subsidiaries and its Subsidiaries’ agents, advisors direct the Company Representatives and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) CPS not to, directly or indirectly, : (i) solicitinitiate, initiate solicit or knowingly encourage (including by way of furnishing nonpublic providing information)) the submission of any inquiries, proposals or offers that constitute, or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may would reasonably be expected to lead to, any Competing TransactionAcquisition Proposal or engage in any discussions or negotiations with respect thereto or otherwise participate in or facilitate any such inquiries, proposals, offers, discussions or negotiations, (ii) enter into approve or maintain recommend, or continue discussions publicly propose to approve or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transactionrecommend, an Acquisition Proposal, (iii) agree towithdraw, approve change, amend, modify or endorse qualify, or propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent or the Purchaser, the Company Board Recommendation, (iv) enter into any Competing Transaction merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar agreement relating to an Acquisition Proposal or enter into any letter of intent agreement or other Contract relating agreement in principle requiring the Company to any Competing Transaction abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (ivv) authorize resolve or permit agree to do any of the officersforegoing (the foregoing clauses (ii), directors (iii) or employees (v) (to the extent related to the foregoing clauses (ii) or (iii)), a “Change of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such actionBoard Recommendation”). The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions solicitation, discussion or negotiations negotiation with any Person that may have been Persons conducted heretofore theretofore by the Company, the Company Subsidiaries, CPS or any of the Company Representatives with respect to a Competing Transaction. The Company any Acquisition Proposal and shall not release any Person from, use its commercially reasonable efforts to cause to be returned or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) destroyed all confidential information heretofore furnished to such Person provided by or on behalf of the Company, any Company Subsidiary or any SubsidiaryCPS to such Person.
(b) Notwithstanding anything to the contrary contained in this Section 10.055.4(a), if at any time following the date hereof and prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has Acceptance Time (i) determinedthe Company has received a bona fide, unsolicited written Acquisition Proposal from a third party that did not result from a breach of this Section 5.4 and (ii) the Company Board determines in its good faith judgment (faith, after consultation with its financial advisor)advisors and outside counsel, that such proposal or offer Acquisition Proposal constitutes or is would reasonably likely be expected to constitute result in a Superior Proposal, then the Company may (A) furnish information with respect to the Company, the Company Subsidiaries and CPS to the Person making such Acquisition Proposal, (B) release the Person making such Acquisition Proposal from any standstill or similar agreement that it entered into with the Company prior to September 30, 2010 to the extent necessary to allow such Person to make and negotiate such Acquisition Proposal, and (C) participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal; provided that the Company (x) will not, will not allow the Company Subsidiaries to, and will instruct CPS and the Company Representatives not to, disclose any information to such Person without first entering into an Acceptable Confidentiality Agreement and (y) will promptly provide to Parent any information concerning the Company, the Company Subsidiaries or CPS provided to such other Person which was not previously provided to Parent.
(c) The Company shall promptly (and in any event within 36 hours) notify Parent in writing in the event that the Company, any Company Subsidiary, CPS or any Company Representative has Knowledge of its receipt of (i) any Acquisition Proposal, (ii) determinedany request for non-public information relating to the Company, any Company Subsidiary or CPS other than requests for information in its the ordinary course of business consistent with past practice and unrelated to an Acquisition Proposal or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal. The Company shall promptly (and in any event within such 36 hours) provide to Parent a copy of such Acquisition Proposal, request or inquiry (or, where no such copy is available, a reasonable description of the material terms of such Acquisition Proposal, request or inquiry), including any modifications thereto. The Company shall keep Parent reasonably informed on a current basis (and in any event at Parent’s request and otherwise no later than 36 hours after it has Knowledge of the occurrence of any material changes, developments, discussions or negotiations) of the status of any Acquisition Proposal, request or inquiry (including the material terms and conditions thereof and of any material modification thereto), and any material developments, discussions and negotiations. Without limiting the foregoing, the Company shall promptly (and in any event within 36 hours) notify Parent if it determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.4(b).
(d) Notwithstanding anything to the contrary contained in Section 5.4(a):
(i) if the Company receives a bona fide written Acquisition Proposal that was not solicited after the date hereof and did not otherwise result from a breach of this Section 5.4 which the Company Board concludes in good faith judgment faith, after consultation with outside legal counsel (who and its financial advisors, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms of this Agreement which may be offered by Parent, the Company Board may, at any time prior to the Acceptance Time, if it determines in good faith after consultation with outside counsel that the failure to take any of the following actions would be inconsistent with the fiduciary duties of the members of the Company Board to the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iiix) provided effect a Change of Board Recommendation with respect to such Superior Proposal, or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that (1) no Change of Board Recommendation may be made and (2) no termination of this Agreement pursuant to this Section 5.4(d) may be made, in each case until after the third (3rd) Business Day following Parent’s receipt of written notice from the Company advising Parent that the Company Board intends to CIG make a Change of Board Recommendation or terminate this Agreement pursuant to this Section 5.4(d) and specifying the NBCU Entities reasons therefor. In determining whether to make a Change of its intent Board Recommendation, the Company Board shall take into account any changes to furnish information the terms of this Agreement proposed by Parent in response to the notice contemplated in this Section 5.4(d) or enter into discussions otherwise; provided, further, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y) unless in advance of or concurrently with such Person and termination the Company pays the Breakup Fee; and
(ivii) obtained from such Person an executed confidentiality agreement except with respect to or in connection with any Acquisition Proposal (it being understood which is covered by Section 5.4(d)(i)), if the Company Board determines in good faith, after consultation with outside counsel, that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right action is necessary to negotiate comply with such party or having its fiduciary duties to the effect stockholders of prohibiting the Company from satisfying its obligations under applicable Law, the Transaction Agreements Company Board may at any time prior to which it is the Acceptance Time effect a party)Change of Board Recommendation.
(ce) Except as otherwise provided Nothing contained in this Agreement, neither Section 5.4 shall prohibit the Company Board nor any committee thereof shall withdraw or modify, or propose from (i) taking and disclosing to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee stockholders of the Transaction Agreements to which the Company is a party position contemplated by Rule 14e-2(a) and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 promulgated under the Exchange ActAct or (ii) making any disclosure to its stockholders if the Company Board has reasonably determined in good faith, after consultation with outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (General Electric Co), Merger Agreement (Clarient, Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willshall not, and that it will shall cause its subsidiaries and its and its Subsidiaries’ subsidiaries' officers, directors, employees, representatives, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) affiliates not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information)inquiries or proposals with respect to, or take engage in any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutesnegotiations concerning, or may reasonably be expected to lead provide any confidential information to, or have any Competing Transactiondiscussions with, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into an agreement with, any letter of intent or other Contract person relating to any Competing Transaction tender or (iv) authorize exchange offer, proposal for a merger, consolidation or permit any of the officers, directors or employees of other business combination involving the Company or any of its Subsidiariessubsidiaries or any proposal or offer to acquire in any manner a greater than 20% equity interest in, or any investment bankermore than 20% of the assets of, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiariessubsidiaries, other than the Transactions (any of the foregoing, an "Acquisition Proposal"); provided, that the Company may (i) at any time prior to the consummation of the Offer, if the Company is not otherwise in violation of this Section 6.5, furnish information to, and negotiate or otherwise engage in discussions with, any party who delivers a written proposal for an Acquisition Proposal if and so long as the Board of Directors of the Company determines in good faith by a majority vote, based upon advice of its outside legal counsel, that failing to take any such actionaction would reasonably be expected to constitute a breach of the fiduciary duties of the Board; and (ii) take a position with respect to the Acquisition Proposal, or amend or withdraw such position, in compliance with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to the Acquisition Proposal. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, also agrees immediately to cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement with any parties other than Purchaser and its affiliates, with respect to any of the foregoing. The Company shall promptly (and in any event within 24 hours) advise Purchaser following the receipt by it of any Acquisition Proposal or any inquiry or request relating thereto and the substance thereof (including the identity of the person making such Acquisition Proposal and a copy of any written proposal), and, if consistent with its fiduciary duties, advise Purchaser of any developments with respect to such Acquisition Proposal, inquiry or request promptly upon the occurrence thereof, including the Company's entering into discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transactionthereto. The Company shall agrees not to release any Person third party from, or waive any provision provisions of, any confidentiality or standstill agreement to which the Company is a party. Without limiting the generality of the foregoing, it is a party and understood that any violation of the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement restrictions set forth in connection with its consideration of acquiring (whether this paragraph by mergerany officer, acquisition of stock director, employee, representative, agent, advisor or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf affiliate of the Company or any Subsidiary.
(b) Notwithstanding anything subsidiary shall be deemed to the contrary in be a breach of this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be paragraph by the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement (Cyrus Acquisition Corp), Merger Agreement (Franks Nursery & Crafts Inc), Merger Agreement (General Host Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the Company, its affiliates and their respective officers, directors, officers employees, representatives and agents shall immediately cease any existing discussions or employees of it or negotiations, if any, with any Subsidiary willparties conducted heretofore with respect to any Third Party Acquisition (as defined in Section 8.3). The Company, its subsidiaries and that it will cause its affiliates and its Subsidiaries’ agentstheir respective officers, advisors directors, employees, representatives and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toagents may, directly or indirectly, furnish information and access to any Third Party (as defined in Section 8.3) (in each case only in response to a request for such information or access made after the date hereof and with respect to confidential information, only pursuant to an appropriate confidentiality agreement) only if, and may participate in discussions and negotiate with such Third Party concerning any Third Party Acquisition, only if
(i) solicitsuch Third Party has submitted a bona fide proposal to the Board relating to any such transaction, initiate or encourage and
(including by way ii) a majority of furnishing nonpublic information)the Board of Directors of the Company determines, or in its good faith judgment after receiving advice from its outside counsel, that failing to take any other such action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may could reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain be a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any breach of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such actiondirectors' fiduciary duties under applicable law. The Company shall promptly notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writingParent, if any proposal or offer, or any inquiry or contact with any Person person with respect thereto, regarding a Competing Transaction is mademade and shall, specifying the material terms and conditions thereof and in any such notice to Parent, indicate in reasonable detail the identity of the party making such offeror and the terms and conditions of any proposal or offer offer, or any such inquiry or contact (including material amendments or proposed material amendments)contact. The Company shallshall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors withdrawing, modifying or amending its recommendation of the Offer, the Merger and shall direct or cause its and its Subsidiaries’ directorsthe other transactions contemplated by this Agreement, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore unless with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and specific development the Board of Directors of the Company also agrees by a majority vote determines in its good faith judgment, after receiving advice from outside counsel, that notifying Parent of such development could reasonably be expected to promptly request each Person that has heretofore executed be a confidentiality agreement breach of the Board's fiduciary duties under applicable law. Except as set forth in connection with its consideration of acquiring (whether by mergerthis Section 6.1, acquisition of stock or assets or otherwise) neither the Company or any Subsidiaryof its affiliates, if anynor any of its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, knowingly encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any Third Party concerning any Third Party Acquisition; provided, that nothing in this Section 6.1 shall prevent the Company or the Board from taking, and disclosing to return (the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer or if permitted by from making such disclosure to the Company's stockholders which, in the good faith judgment of its Board of Directors after receiving advice from outside counsel, is required under applicable confidentiality agreementlaw; provided further, destroy) all confidential information heretofore furnished to such Person by or on behalf that the Board shall not recommend that the stockholders of the Company or tender their Common Shares in connection with any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, such tender offer unless the Board may furnish information to, and enter into discussions with, by a Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Board has (i) determined, majority vote determines in its good faith judgment (judgment, after consultation with its financial advisor)receiving advice from outside counsel, that failing to take such proposal or offer constitutes or is action could reasonably likely be expected to constitute be a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be breach of the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its Board's fiduciary obligations to the Company and its stockholders duties under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)law.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement (Trident International Inc), Merger Agreement (Illinois Tool Works Inc), Merger Agreement (Trident International Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any that, from and after the date hereof until the earlier of the directorsEffective Time or the termination of this Agreement in accordance with Article VIII, officers or employees of it or any Subsidiary willshall not, and that it will shall cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectly, (i) solicitinitiate, initiate solicit or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal proposal, or offer (includingwith respect to a merger, without limitationreorganization, any proposal share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or offer to its stockholders) that constitutessimilar transaction involving, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into purchase or maintain sale of all or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any significant portion of the officersassets or 20% or more of the equity securities of, directors or employees of the Company or any of Company Subsidiary (any such proposal or offer being hereinafter referred to as a "Company Acquisition Proposal"). The Company further agrees that it shall not, and that it shall cause its SubsidiariesRepresentatives not to, directly or indirectly, have any investment banker, financial advisor, attorney, accountant discussion with or other representative retained by provide any confidential information or data relating to the Company or any of its Subsidiaries, Company Subsidiary to take any such action. The Person relating to a Company shall notify CIG and the NBCU Entities as promptly as practicable (and Acquisition Proposal or engage in any event within one (1negotiations concerning a Company Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement a Company Acquisition Proposal or accept a Company Acquisition Proposal; provided, however, that nothing contained in this Section 6.04(a) Business Day after shall prevent the Company attains knowledge thereof), orally and or the Company Board from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal; (ii) engaging in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with with, or providing any information to, any Person that may have been conducted heretofore with respect in response to a Competing Transaction. The an unsolicited written Company shall not release Acquisition Proposal by any Person fromsuch Person; or (iii) recommending such an unsolicited written Company Acquisition Proposal to the holders of Company Common Stock if, in any such case as is referred to in clause (ii) or waive any provision of(iii), any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwiseA) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary Board concludes in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisoradvisors) that such Company Acquisition Proposal would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Company Acquisition Proposal being referred to in this Agreement as a "Company Superior Proposal"), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (iiB) determined, the Company Board determines in its good faith judgment after consultation with outside legal counsel (who may be the Company’s 's regularly engaged outside legal counsel), that, ) that such action could reasonably be deemed to be necessary for it to act in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply a manner consistent with its fiduciary obligations to the Company and its stockholders duties under applicable Law, (iiiC) provided written notice prior to CIG and the NBCU Entities of its intent to furnish providing any information or enter into discussions data regarding the Company to any Person or any of such Person's Representatives in connection with a Company Superior Proposal by such Person and (iv) obtained Person, the Company receives from such Person an executed confidentiality agreement on terms at least as restrictive on such Person as those contained in the Confidentiality Agreement, (it being understood that D) prior to providing any information or data to any Person or any of such confidentiality agreement and Person's Representatives or entering into discussions or negotiations with any related agreements shall not include Person or any provision calling for any exclusive right to negotiate of such Person's Representatives in connection with a Company Superior Proposal by such Person, the Company notifies Parent promptly of the receipt of such Company Superior Proposal indicating, in connection with such party notice, the name of such Person and attaching a copy of the proposal or having the effect of prohibiting offer or providing a complete written summary thereof, and (E) the Company from satisfying has not breached its obligations under the Transaction Agreements first sentence of this Section 6.04(a). The Company agrees that it will immediately cease and cause to which be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Company Acquisition Proposal. The Company agrees that it is shall keep Parent informed, on a partycurrent basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations. The Company agrees that it will take the necessary steps to promptly inform each Representative of the Company of the obligations undertaken in this Section 6.04(a).
(cb) Except Parent agrees that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, it shall not, and that it shall cause its Representatives not to, directly or indirectly, initiate, solicit or encourage any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, Parent or any Parent Subsidiary that, in any such case, could reasonably be expected to preclude the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as a "Parent Acquisition Proposal"). Parent further agrees that it shall not, and that it shall cause its Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to Parent or any Parent Subsidiary to any Person relating to a Parent Acquisition Proposal or engage in any negotiations concerning a Parent Acquisition Proposal, or otherwise provided facilitate any effort or attempt to make or implement a Parent Acquisition Proposal or accept a Parent Acquisition Proposal; provided, however, that nothing contained in this Agreement, neither Section 6.04(b) shall prevent Parent or the Parent Board nor from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a Parent Acquisition Proposal; (ii) engaging in any committee thereof shall withdraw discussions or modifynegotiations with, or propose providing any information to, any Person in response to withdraw an unsolicited written Parent Acquisition Proposal by any such Person; or modify(iii) recommending such an unsolicited written Parent Acquisition Proposal to the holders of Parent Common Stock if, in any such case as is referred to in clause (ii) or (iii), (A) the Parent Board concludes in good faith (after consultation with its financial advisors) that such Parent Acquisition Proposal would, if consummated, result in a transaction more favorable to holders of Parent Common Stock than the transaction contemplated by this Agreement (any such more favorable Parent Acquisition Proposal being referred to in this Agreement as a "Parent Superior Proposal"), (B) the Parent Board determines in good faith after consultation with outside legal counsel (who may be Parent's regularly engaged outside legal counsel) that such action could reasonably be deemed to be necessary for it to act in a manner adverse consistent with its fiduciary duties under applicable Law, (C) prior to CIG providing any information or data regarding Parent or any Parent Subsidiary to any Person or any of such Person's Representatives in connection with a Parent Superior Proposal by such Person, Parent receives from such Person an executed confidentiality agreement on terms at least as restrictive on such Person as those contained in the Confidentiality Agreement, (D) prior to providing any information or data to any Person or any of such Person's Representatives or entering into discussions or negotiations with any Person or any of such Person's Representatives in connection with a Parent Superior Proposal by such Person, Parent notifies the Company promptly of the receipt of such Parent Superior Proposal indicating, in connection with such notice, the name of such Person and attaching a copy of the proposal or offer or providing a complete written summary thereof, and (E) Parent has not breached its obligations under the first sentence of this Section 6.04(b). Parent 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 Parent Acquisition Proposal. Parent agrees that it shall keep the Company informed, on a current basis, of the status and terms of any such proposals or offers and the NBCU Entities, the approval or recommendation by the Board or status of any such committee discussions or negotiations. Parent agrees that it will take the necessary steps to promptly inform each Representative of Parent of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactionobligations undertaken in this Section 6.04(b).
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement (Medical Manager Corp/New/), Merger Agreement (Healtheon Webmd Corp), Merger Agreement (Careinsite Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor shall immediately cease and cause to be terminated all existing discussions or negotiations relating to a Competing Transaction (as defined below), other than with respect to the Transactions, with any Subsidiary nor any of the directorsparties conducted heretofore. The Company will not, officers directly or employees of it or any Subsidiary willindirectly, and that it will cause instruct its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectly, (i) solicitinitiate, initiate solicit or encourage (including by way of furnishing nonpublic informationinformation or assistance), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) or enter into or maintain or continue discussions or negotiations negotiate with any Person person in furtherance of or relating to such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) or agree to, approve to or endorse any Competing Transaction Transaction, or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees Representative of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, Subsidiaries to take any such action. The , the Company shall notify CIG and use its best efforts to cause the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf Representatives of the Company or and its Subsidiaries not to take any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicablesuch action, the Board may furnish information to, and enter into discussions with, a Person who has Company shall promptly notify Purchaser if any such inquiries or proposals are made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Company shall promptly inform Purchaser as to the material details of any such inquiry or proposal and, if in writing, promptly deliver or cause to be delivered to Purchaser a copy of such inquiry or proposal. The Company shall keep Purchaser informed, on a current basis, of the details of any such inquiries and the status and terms of any such proposals; provided, however, that prior to the time of acceptance for payment -------- ------- of at least a majority of Shares pursuant to the Offer, nothing contained in this Section 6.3 shall prohibit the Board has of Directors of the Company from (i) determinedfurnishing information to, in its good faith judgment or entering into discussions or negotiations with, any person that after the date hereof makes an unsolicited bona fide proposal regarding a Competing Transaction or agreeing to or endorsing any Competing Transaction, if, and only to the extent that, (A) the Board of Directors of the Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that such action is required for the Board of Directors of the Company to comply with its fiduciary duties to stockholders imposed by the DGCL, (B) prior to furnishing such information to, or entering into discussions or negotiations with such person or agreeing to or endorsing any Competing Transaction, the Board of Directors of the Company determines in good faith, after consultation with and based upon the advice of a financial advisor)advisor of a nationally recognized reputation, that such proposal or offer constitutes or Competing Transaction is reasonably likely to constitute a Superior Proposal, (iiC) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the prior to furnishing of such information to, or entering into discussions is required to comply with its fiduciary obligations to or negotiations with, such person, the Company and its stockholders under applicable Law, (iii) provided provides written notice to CIG and Purchaser to the NBCU Entities of its intent to furnish effect that it is furnishing information to, or enter entering into discussions with or negotiations with, such Person and person, (ivD) obtained prior to furnishing such information to such person, the Company receives from such Person person an executed confidentiality agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right with terms no less favorable to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations than those contained in the Confidentiality Agreement, and (E) such information to be so furnished has been previously delivered to Purchaser; or (ii) complying with Rule 14e-2 promulgated under the Transaction Agreements Exchange Act with regard to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement (Gateway 2000 Inc), Merger Agreement (Gateway 2000 Inc), Merger Agreement (Advanced Logic Research Inc)
No Solicitation of Transactions. (a) The Until the earlier of the Effective Time and the termination of this Agreement pursuant to Article 8, except pursuant to Section 6.03(b), the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary its Subsidiaries will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives Representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any SubsidiaryGroup Company) not to, in each case, directly or indirectly, (i) solicit, initiate or initiate, knowingly encourage (including by way of furnishing nonpublic informationinformation with respect to any Group Company), or take any other action to knowingly facilitate, any inquiries or the making of any inquiry, proposal or offer (including, without limitation, including any proposal or offer to its stockholdersshareholders) that constitutes, constitutes or may would reasonably be expected to lead to, result in any Competing Transaction, or (ii) enter into engage in, continue or maintain or continue otherwise participate in any discussions or negotiations with, or provide any nonpublic information with respect to any Person Group Company to, any Third Party in furtherance of such inquiries or in order to obtain a any inquiry, proposal or offer for a that constitutes or would reasonably be expected to result in any Competing Transaction, (iii) agree to, approve approve, endorse, recommend or endorse any Competing Transaction consummate, or enter into any letter of intent or Contract (other Contract than an Acceptable Confidentiality Agreement) or commitment contemplating or otherwise relating to, any proposal or offer that constitutes or would reasonably be expected to result in any Competing Transaction, (iv) grant any waiver, amendment or release under any standstill, confidentiality or similar agreement or Takeover Statutes, or (v) agree or authorize to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and the Representatives of the Company and its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Parties conducted heretofore with respect to a Competing Transaction or any inquiry, proposal or offer that would reasonably be expected to result in a Competing Transaction and immediately revoke or withdraw access of any Third Party to any nonpublic information concerning any Group Company and request, and use its reasonable efforts to cause, all such Third Parties to promptly return or destroy all such nonpublic information.
(ivb) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities THL as promptly as practicable (and in any event within one forty-eight (148) Business Day hours) after the Company attains knowledge thereof)its receipt of any inquiry, orally and in writing, if any proposal or offer, or any inquiry request for nonpublic information on any Group Company by any Third Party which indicates that it is considering making or contact with has made a proposal or offer, that constitutes or would reasonably be expected to result in any Person with respect thereto, regarding a Competing Transaction is made, specifying Transaction. Such notice shall specify in writing in reasonable detail (i) the material terms and conditions thereof and thereof, (ii) the identity of the party Third Party making such proposal inquiry, proposal, offer, request or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shallcontact, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, iii) whether the Company has any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause intention to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect provide confidential information to a Competing Transactionsuch person. The Company shall keep THL informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such inquiry, proposal, offer, request or contact and of any material changes in the status and terms of any such inquiry, proposal, offer, request or contact. The Company shall not, and shall cause its Subsidiaries not release any Person fromto, or waive any provision of, enter into any confidentiality or standstill agreement with any Third Party subsequent to the date of this Agreement which it is a party and prohibits the Company also agrees from providing such information to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any SubsidiaryTHL.
(bc) Notwithstanding anything to the contrary in this Section 10.056.03(a), prior to following the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information to, and enter into discussions with, a Person who has made receipt of an unsolicited, written, bona fide proposal or offer regarding a Competing TransactionTransaction which was not obtained in violation of this Section 6.03, the Company and its Representatives may, with respect to such proposal or offer and acting only under the Board has direction of the Special Committee:
(i) contact the Third Party who has made such proposal or offer to clarify and understand the terms and conditions thereof to the extent the Special Committee has determined in good faith that such contact is necessary to determine whether such proposal or offer constitutes or would reasonably be expected to result in a Superior Proposal;
(ii) provide information in response to the request of the Third Party who has made such proposal or offer pursuant to an executed Acceptable Confidentiality Agreement between the Company and such person, provided that the Company shall concurrently make available to THL any non-public information concerning the Company and its Subsidiaries that is provided to any such person that was not previously made available to THL or its Representatives; and
(iii) engage in or participate in any discussions or negotiations with the Third Party who has made such proposal or offer; provided, that prior to taking any actions described in clause (ii) or (iii) above, the Special Committee has determined, in its good faith judgment (judgment, after consultation with its financial advisor)advisor and outside legal counsel, that such proposal or offer constitutes or is would reasonably likely be expected to constitute result in a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of and that failure to take such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with action would violate its fiduciary obligations duties to the Company and its stockholders shareholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(cd) Except as otherwise provided set forth in this AgreementSection 6.03(e), neither the Company Board nor any committee thereof (including the Special Committee) shall withdraw (i) change, withhold, withdraw, qualify or modify, or propose to withdraw change, withhold, withdraw, qualify or modify, in a manner adverse to CIG and THL or Parent, any recommendation or approval that the NBCU Entities, the approval or recommendation by the Company Board or any such committee of the Transaction Agreements Special Committee has previously made or resolved with respect to which the Company is a party and the TransactionTransactions, including the Tender Offer and the Reverse Stock Split(ii) adopt, or approve or recommend, or propose to adopt, approve or recommend to the shareholders of the Company, any Competing Transaction, (iii) if a tender offer or exchange offer that constitutes a Competing Transaction is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company shareholders (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after commencement thereof, (iv) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, or (v) propose, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or obligation other or similar document or Contract with respect to, to any Competing TransactionTransaction other than an Acceptable Confidentiality Agreement entered into in compliance with Section 6.03(c) (any of the foregoing, a “Change in the Company Recommendation”).
(de) The parties acknowledge Notwithstanding the foregoing, prior to the consummation of the Merger, if the Company has received a bona fide written proposal or offer with respect to a Competing Transaction which was not withdrawn and agree the Company Board (acting upon recommendation of the Special Committee) has determined in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that nothing contained herein such proposal or offer constitutes a Superior Proposal after giving effect to all of the adjustments which may be offered by THL pursuant to this Section 6.03(e) and that failure to make a Change in the Company Recommendation would violate its fiduciary duties to the Company and its shareholders under applicable Law, the Company Board (acting upon recommendation of the Special Committee) may effect a Change in the Company Recommendation with respect to such Superior Proposal; provided, that, (A) the Company has materially complied with the requirements of this Section 6.03 with respect to such proposal or offer; (B) the Company has (1) provided at least five (5) Business Days’ prior written notice to THL (a “Notice of Superior Proposal”) advising THL that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (and providing any proposed agreements related thereto), identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation, (2) negotiated with and caused its Representatives to negotiate with THL and its Representatives in good faith during such notice period (to the extent THL desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such Third Party proposal or offer would cease to constitute a Superior Proposal, and (3) permitted THL and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and any adjustments with respect thereto (to the extent THL desires to make such presentation); and (C) following the end of such five (5) Business Day notice period, the Company Board (acting upon recommendation of the Special Committee) has determined in its good faith judgment, after consultation with its financial advisor and outside legal counsel and taking into account any changes to this Agreement proposed by THL in response to the Notice of Superior Proposal or otherwise, that the proposal or offer with respect to the Competing Transaction giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and that failure to make a Change in the Company Recommendation would violate its fiduciary duties to the Company and its shareholders under applicable Law; provided further, that any material modifications or changes to such Third Party proposal or offer shall affect be deemed a new Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.03(e), except that with respect to such new Superior Proposal, the notice periods in this Section 6.03(e) shall be deemed to be a three (3) Business Day period rather than a five (5) Business Day period. None of the Company, the Company Board or any committee thereof (including the Special Committee) shall enter into any Contract with any Third Party to limit or not to give prior notice to THL of its intention to effect a Change in the Company Recommendation.
(f) Notwithstanding any other provision of this Agreement, prior to the Effective Time, the Company Board (acting upon recommendation of the Special Committee) or the Special Committee may direct the Company to terminate this Agreement (other than in response to a Superior Proposal, which shall be governed by the other provisions hereof) (such a termination, the “Intervening Event Termination”) if and only if (i) a material development or change in circumstances has occurred or arisen after the date of this Agreement that was not known to, nor reasonably foreseeable by, any member of the Special Committee as of or prior to the date hereof and did not result from or arise out of the announcement or pendency of, or any actions required to be taken by the Company (or to be refrained from being taken by the Company) pursuant to, this Agreement (an “Intervening Event”); provided, that in no event shall the following developments or changes in circumstances constitute an Intervening Event: (x) the receipt, existence, or terms of a proposal or offer regarding a Competing Transaction or any matter relating thereto or consequence thereof or any inquiry, proposal, offer, or transaction from any Third Party relating to or in connection with a Competing Transaction (which, for the purposes of the Intervening Event definition, shall be read without reference to the percentage thresholds set forth in the definition thereof), or (y) any way interfere change in the price, or change in trading volume, of the Shares or the ADSs (provided, however, that the exception to this clause (y) shall not apply to the underlying causes giving rise to or contributing to such change or prevent any of such underlying causes from being taken into account in determining whether an Intervening Event has occurred), (ii) the Company Board has first reasonably determined in good faith, after consultation with its financial advisor and outside legal counsel, that failure to do so would reasonably be expected to violate its fiduciary duties to the Company’s Obligation Company and its shareholders under applicable Law, (iii) five (5) Business Days have elapsed since the Company has given written notice of such Intervening Event Termination to comply THL advising that it intends to take such action and specifying in reasonable detail the reasons therefor and including a reasonably detailed written description of the Intervening Event, (iv) during such five (5) Business Day period, the Company has considered and, if requested by THL, engaged in good faith discussions with Rule 14d-9 THL regarding, any adjustment or modification to the terms of this Agreement proposed by THL, and (v) the Company Board (acting upon recommendation of the Special Committee) or the Special Committee, following such five (5) Business Day period, again reasonably determines in good faith, after consultation with its financial advisor and outside legal counsel and taking into account any adjustment or modification to the terms of this Agreement proposed by THL, that failure to do so would reasonably be expected to violate its fiduciary duties to the Company and its shareholders under the Exchange Actapplicable Law.
Appears in 3 contracts
Samples: Plan of Merger (Sogou Inc.), Merger Agreement (Sogou Inc.), Merger Agreement (Sohu.com LTD)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any Subsidiary nor through any of the directorsofficer, officers director, advisor or employees of it or any Subsidiary will, and that it will cause other person acting on its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not tobehalf shall, directly or indirectly, (i) solicit, initiate or encourage in any way any Acquisition Proposal; provided, however, that the Company may furnish information to and negotiate with a third party (including a "Potential Acquirer") if the Potential Acquirer has, in circumstances not involving any breach by way the Company of furnishing nonpublic information)the foregoing provisions, made a tender or exchange offer for, or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal to the Board to acquire 20% or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any more of the officersShares, directors or employees and (A) the Board determines in good faith, based on the advice of outside counsel, that the failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the stockholders of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shallunder applicable law, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwiseB) the Company or any Subsidiary, if any, Company's Board is advised by its financial advisor that such Potential Acquirer has the financial wherewithal to return (or if permitted by consummate the applicable confidentiality agreement, destroy) all confidential information heretofore furnished acquisition and such acquisition would be more favorable to such Person by or on behalf the stockholders of the Company or any Subsidiarythan the Transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary Except as set forth in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor7.05(b), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU EntitiesCRI, Holdings or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Transaction Agreements to which Offer or the Company is a party and the TransactionMerger, including the Tender Offer and the Reverse Stock Split, or (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, in the event that, prior to the Share Acceptance Date pursuant to the Offer, the Board determines in good faith that it is required to do so by its fiduciary duties under applicable law after having received advice from outside legal counsel, the Board may withdraw or modify its approval or recommendation of the Offer and the Merger, but only to terminate this Agreement in accordance with Section 9.01(d)(ii) (and, concurrently with such termination, cause or permit the Company to enter into any letter of intent, an agreement or obligation with respect to a Superior Proposal).
(c) The Company shall, and shall direct or cause its directors, officers, employees, representatives and agents to, immediately cease and cause to be terminated any Competing Transactiondiscussions or negotiations with third parties that may be ongoing with respect to any Acquisition Proposal.
(d) The parties acknowledge Company shall promptly advise CRI in writing (within 48 hours) of the material terms and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Actconditions of such Acquisition Proposal.
Appears in 3 contracts
Samples: Merger Agreement (Comstock Resources Inc), Merger Agreement (Comstock Resources Inc), Merger Agreement (Devx Energy Inc)
No Solicitation of Transactions. (a) The Company agrees that neither (i) it nor any Subsidiary nor any of the directorsand its directors and officers shall not, (ii) its Subsidiaries and its Subsidiaries’ directors and officers or employees of shall not and (iii) it or any Subsidiary will, and shall use reasonable best efforts to ensure that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toRepresentatives shall not, directly or indirectly, (iA) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries regarding or the making of any proposal that constitutes or offer is reasonably likely to lead to a Takeover Proposal, (includingB) enter into, without limitation, continue or otherwise participate in any proposal discussions or offer to its stockholders) that constitutesnegotiations regarding, or may reasonably be expected furnish to lead any Person any confidential information with respect to, any Competing TransactionTakeover Proposal, (iiC) enter into any agreement or maintain agreement in principle requiring, directly or continue discussions indirectly, the Company to abandon, terminate or negotiations with any Person in furtherance of such inquiries or fail to obtain a proposal or offer for a Competing Transactionconsummate the transactions contemplated hereby, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (ivD) authorize publicly propose or permit agree to do any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments)foregoing. The Company shall, and shall direct or cause its Subsidiaries and direct its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives to, immediately cease and cause to be terminated any all existing discussions or and negotiations with any Person that may have been conducted heretofore prior to the date of this Agreement with respect to a Competing Transactionany Takeover Proposal. The Company shall not release Notwithstanding the foregoing or anything else in this Agreement to the contrary, at any Person from, or waive any provision of, any confidentiality or standstill agreement time prior to which it is a party and obtaining the Company also agrees Required Vote, in response to promptly request each a bona fide written Takeover Proposal received after the date hereof that did not result from a material breach of this Section 6.06, if the Company Board of Directors determines after consultation with its financial advisors and outside counsel, that such Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, the Company may (and may authorize and permit its Subsidiaries and Representatives to), subject to compliance with Section 6.06(c), (1) furnish information with respect to the Company and its Subsidiaries to the Person that has heretofore executed making such Takeover Proposal (and its Representatives) pursuant to a confidentiality agreement containing provisions (including standstill provisions) not less restrictive with respect to the Person making such Takeover Proposal than those set forth in the Confidentiality Agreement are to CF Corp, provided that all such information has previously been provided to CF Corp or is provided to CF Corp prior to or substantially concurrently with the time it is provided to such Person, and (2) participate in discussions and negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal, if and only to the extent that in connection with its consideration of acquiring the foregoing clauses (whether by merger, acquisition of stock or assets or otherwise1) and (2) the Company or any SubsidiaryBoard of Directors determines in good faith, if anyafter consultation with its financial advisors and outside counsel, that the failure to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiarydo so would be inconsistent with its fiduciary duties under Delaware Law.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to Neither the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities Board of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board Directors nor any committee thereof shall (i)(A) withdraw (or modify, or propose to withdraw or modify, modify in a manner adverse to CIG and the NBCU EntitiesCF Corp), or publicly propose to withdraw or withhold (or modify in a manner adverse to CF Corp), the approval approval, recommendation or recommendation declaration of advisability by the Company Board of Directors or any such committee of this Agreement or the Transaction Agreements to which Merger or (B) recommend or endorse the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Splitapproval or adoption of, or approve or adopt, or publicly propose to recommend, endorse, approve or adopt, any Takeover Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”; it being understood that any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act shall not be deemed to be an Adverse Recommendation Change) or (ii) approve or recommend, or publicly propose to approve or recommend, or cause or permit the Company or any of its Subsidiaries to execute or enter into, any Takeover Proposal Documentation. Notwithstanding the foregoing or anything else in this Agreement to the contrary, at any time prior to obtaining the Company Required Vote, the Company Board of Directors may, if, after consultation with its financial advisors and outside counsel, it determines that the failure to take such action would be inconsistent with its fiduciary duties under Delaware Law, (1) make an Adverse Recommendation Change or (2) cause or permit the Company to terminate this Agreement in order to enter into an agreement regarding a Superior Proposal if and only if (I) the Company has complied in all material respects with this Section 6.06 and shall have given CF Corp written notice at least four (4) Business Days prior to taking such action (a “Notice of Superior Proposal”), that the Company Board of Directors intends to take such action in response to a Superior Proposal and specifying the reasons therefor, including the most current version of any letter proposed agreement or, if there is no such proposed written agreement, a reasonably detailed summary of intentthe material terms and conditions of any such Superior Proposal and the identity of the Person making such Superior Proposal and (II) during such four (4) Business Day period, agreement if requested by CF Corp, the Company and its Representatives shall engage in good faith negotiations with CF Corp and its Representatives to amend this Agreement in such a manner that any Takeover Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal taking into account any changes to the financial terms and other material terms of this Agreement proposed by CF Corp in writing to the Company following the Notice of Superior Proposal (it being understood and agreed that any amendment to the financial terms or obligation other material terms of such Superior Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with this Section 6.06(b), except that reference to the four (4) Business Day period shall be deemed a reference to a new two (2) Business Day period).
(c) In addition to the obligations of the Company set forth in Section 6.06(a) and Section 6.06(b), the Company shall as promptly as practicable advise CF Corp of the receipt of any Takeover Proposal after the date of this Agreement, the material terms and conditions of any such Takeover Proposal and the identity of the Person making any such Takeover Proposal. The Company shall, subject to the fiduciary duties of the Company Board of Directors under applicable Law, keep CF Corp reasonably informed of any material developments with respect to, to any Competing Transactionsuch Takeover Proposal (including any material changes thereto).
(d) The parties acknowledge Prior to obtaining the Company Required Vote, the Company Board of Directors may make an Adverse Recommendation Change in response to a Change in Circumstance, if and agree that nothing contained herein shall affect or only if (i) the Company Board of Directors determines in any way interfere good faith, after consultation with the Company’s Obligation outside counsel, that the failure to comply do so would be inconsistent with its fiduciary duties under applicable Law, (ii) the Company shall have given CF Corp written notice at least four (4) Business Days prior to making any such Adverse Recommendation Change, (iii) during such four (4) Business Day period, if requested by CF Corp, the Company and its Representatives shall engage in good faith negotiations with CF Corp and its Representatives to amend this Agreement and (iv) after considering any proposed revisions to this Agreement made by CF Corp in writing during such four (4) Business Day period, if any, after consultation with its outside counsel, the Company Board of Directors shall have determined, in good faith, that the failure to make the Adverse Recommendation Change in response to such Change in Circumstance would be inconsistent with its fiduciary duties under applicable Law.
(e) Nothing contained in this Section 6.06 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange ActAct or (ii) making any disclosure to its stockholders if the Company Board of Directors determines (after consultation with its outside counsel) that failure to do so would be inconsistent with its obligations under applicable Law, it being understood, however, that this clause (ii) shall not be deemed to permit the Company Board of Directors to make an Adverse Recommendation Change or take any of the actions referred to in clause (ii) of Section 6.06(b) except, in each case, to the extent permitted by Section 6.06(b).
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (CF Corp), Merger Agreement (Fidelity & Guaranty Life)
No Solicitation of Transactions. (a) The Company shall, and shall cause its Affiliates, Representatives and any other agents to immediately cease any discussions, negotiations or communications with any party or parties with respect to any Competing Transaction. The Company also agrees promptly following public announcement of this Agreement to request each Person that neither it nor any Subsidiary nor any has executed a confidentiality agreement in the past year in connection with its consideration of acquiring (whether by merger, acquisition, stock sale, asset sale or otherwise) the Company and was supplied with currently confidential information, if any, to return all confidential information heretofore furnished to such Person by or on behalf of the directorsCompany.
(b) The Company shall not, officers nor shall it authorize or employees permit any Affiliate or Representative of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not the Company to, directly or indirectly, (i) solicit, initiate initiate, intentionally encourage, participate in or encourage otherwise facilitate, directly or indirectly, any inquiries relating to, or the submission of, any Competing Transaction or (including by way of furnishing nonpublic information)ii) directly or indirectly, solicit, initiate, intentionally encourage, participate in or otherwise facilitate any discussions or negotiations regarding, or furnish to any Third Party any information or data with respect to or provide access to the properties, offices, books, records, officers, directors or employees of, or take any other action to facilitateknowingly, any inquiries directly or indirectly, solicit, initiate, intentionally encourage, participate in or otherwise facilitate the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction. Notwithstanding the foregoing sentence, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain if the Company receives a proposal or offer for a Superior Competing Transaction, (iii) agree tothen, approve or endorse any Competing Transaction or enter into any letter prior to acceptance by Merger Sub for payment and payment by Merger Sub for Company Common Shares pursuant to the Offer, the Company Board of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit Directors and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the officerspurpose of clarifying the proposal and any material contingencies and the capability of consummation, directors or employees and the Company may, subject to a good-faith determination by a majority of the members of the Company Board of Directors (in consultation with outside counsel) that the failure to take such action would result in a breach of the fiduciary duties of the Company Board of Directors to the Company Stockholders under applicable Law or any Order, and further subject to the Company providing prior written notice to Parent of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained decision to take such action and compliance by the Company with Section 6.4(d), furnish information with respect to the Company to, and participate in discussions and negotiations directly or any of through its SubsidiariesRepresentatives with, such Third Party, subject to take any such action. The a confidentiality agreement not materially less favorable to the Company shall notify CIG than the Confidentiality Agreement and the NBCU Entities as promptly as practicable (and in any event within which contains a one (1) Business Day after year prohibition against such Third Party soliciting the Company attains knowledge thereof), orally and in writing, if employment of any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity employee of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither Neither the Company Board of Directors nor any committee thereof shall (i) withdraw or modify, propose or propose resolve to withdraw or modify, in a manner adverse to CIG and the NBCU EntitiesParent or Merger Sub, the approval or and recommendation by the Company Board of Directors of the Offer, the Merger, this Agreement, the Transaction Documents, the transactions contemplated hereby and thereby and the actions taken in connection herewith and therewith, (ii) approve or recommend, or propose or resolve to approve or recommend, any Competing Transaction, (iii) approve or recommend, or propose or resolve to approve or recommend, or execute or enter into, any Acquisition Agreement, (iv) approve or recommend, or propose or resolve to approve or recommend, or execute or enter into, any agreement (written or oral) requiring it to abandon, terminate or fail to consummate the Offer, the Merger, this Agreement, any Transaction Document or the transactions contemplated hereby or thereby, (v) take any action to (A) redeem the Rights, (B) waive or amend any provision of the Company Rights Agreement or (C) take any action with respect to, or make any determination under, the Company Rights Agreement, in any such committee case to permit or facilitate the consummation of a Competing Transaction, (vi) take any action necessary to render the provisions of any Antitakeover Law inapplicable to any Competing Transaction, or (vii) propose or agree to do any of the foregoing constituting or related to, or which is intended to or would reasonably be expected to lead to, any Competing Transaction. Notwithstanding the foregoing, at any time prior to acceptance by Merger Sub for payment and payment by Merger Sub for Company Common Shares pursuant to the Offer, in response to a Superior Competing Transaction Agreements which was not solicited, initiated, intentionally encouraged, participated in or otherwise facilitated by the Company in breach of Section 6.4(b), the Company Board of Directors may, if it determines in good faith (after consultation with outside counsel) that the failure to do so would result in a breach of the fiduciary duties of the Company Board of Directors to the Company Stockholders under applicable Law or Order, modify, or propose or resolve to modify, in a manner adverse to Parent or Merger Sub, the approvals and recommendations of the Company Board of Directors of the Offer, the Merger, the transactions contemplated thereby or by the Transaction Documents, but only (y) at a time that is after the tenth (10th) Business Day following Parent's receipt of written notice advising Parent that the Company Board of Directors is prepared to take such action (during which period the Company shall negotiate in good faith with Parent concerning any New Parent Proposal), specifying therein all of the terms and conditions of such Superior Competing Transaction, and identifying the Person or group making such Superior Competing Transaction and (z) if, after the end of such ten (10) Business Day period, the Company Board of Directors determines in good faith (after consultation with the Independent Advisor and outside counsel) that such proposed transaction continues to be a Superior Competing Transaction, after taking into account any New Parent Proposal. The Company shall not during the term of this Agreement release any Third Party from, or agree to amend or waive any provision of any confidentiality agreement, and the Company shall take all reasonable efforts to enforce, to the fullest extent permitted by applicable Laws, each confidentiality agreement entered into pursuant to this Section 6.4 and any other confidentiality agreement to which the Company is or becomes a party party.
(d) In addition to the obligations set forth in Sections 6.4(a), (b) and (c), the Company shall advise Parent orally and, if requested by Parent, in writing of (i) any Competing Transaction or any offer, proposal or inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the Knowledge of the Company, other Representative of the Company, (ii) the terms and conditions of such Competing Transaction (including a copy of any written proposal) and (iii) the identity of the Person or group making the offer, proposal or inquiry for any such Competing Transaction immediately (but in any event within twenty-four (24) hours) following receipt by the Company or any officer or director of the Company or, to the Knowledge of the Company, any other 38 Representative of the Company of such Competing Transaction offer, proposal or inquiry. The Company shall have no obligation to update Parent unless and until (y) such offer, proposal or inquiry is withdrawn or (z) the Company Board of Directors determines that such Competing Transaction is a Superior Competing Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit at which point the Company will follow the procedures set forth in Section 6.4(c). The Company agrees to enter into any letter notify Parent immediately if the Company Board of intent, agreement or obligation with respect to, any Directors determines that a Competing Transaction is not a Superior Competing Transaction.
(de) The parties acknowledge Nothing contained in this Section 6.4 or any other provision hereof shall prohibit the Company or the Company Board of Directors from taking and agree that nothing contained herein shall affect or in any way interfere with disclosing to the Company’s Obligation Company Stockholders pursuant to comply with Rule Rules 14d-9 and 14e-2 promulgated under the Exchange ActAct a position with respect to a tender or exchange offer by a Third Party which is consistent with its obligations hereunder; provided, however, that neither the Company nor the Company Board of Directors may either (i) except as provided by this Section 6.4, modify, or propose publicly to modify, in a manner adverse to Parent and Merger Sub, the approvals or recommendations of the Company Board of Directors of the Offer, the Merger or this Agreement or (ii) approve or recommend a Competing Transaction, or propose publicly to approve or recommend a Competing Transaction.
(f) Nothing in this Section 6.4 shall (i) permit the Company to terminate this Agreement (except as expressly provided in Article VIII) or (ii) affect any other obligations of the Company under this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Ivillage Inc), Merger Agreement (Promotions Com Inc), Merger Agreement (Ivillage Inc)
No Solicitation of Transactions. (a) The Subject to Sections 7.8(b) and 7.8(c), the Company agrees that neither shall not, nor shall it nor any Subsidiary nor any of the directors, officers authorize or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not topermit, directly or indirectly, any officer, trustee, director, employee, investment banker, financial advisor, attorney, broker, finder or other agent, representative or Affiliate of the Company to (i) initiate, solicit, initiate knowingly encourage or encourage knowingly facilitate (including by way of furnishing nonpublic information), information or take any other action to facilitate, assistance) any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) other action that constitutes, or may reasonably be expected to lead to, any Competing Transaction, Acquisition Proposal or (ii) enter into or maintain or continue discussions or negotiations negotiate with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree otherwise with respect to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officersobtain, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such actionan Acquisition Proposal. The Company shall notify CIG take all actions reasonably necessary to cause its officers, trustees, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives or affiliates to immediately cease any discussions, negotiations or communications with any party or parties with respect to any Acquisition Proposal that is active or pending as of the NBCU Entities as promptly as practicable (and date hereof; provided, however, that nothing in any event within one (1) Business Day after this Section 7.8 shall preclude the Company attains knowledge thereof)or its officers, orally trustees, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and in writingother agents, if any proposal representatives or offer, or any inquiry or contact affiliates from complying with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity provisions of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendmentsSection 7.8(d). The Company shallshall be responsible for any failure on the part of its officers, and shall direct or cause its and its Subsidiaries’ trustees, directors, officers, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause affiliates to be terminated any discussions or negotiations comply with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiarythis Section 7.8.
(b) Notwithstanding anything to the contrary in Further, and except as expressly permitted by this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement7.8, neither the Board nor any committee thereof shall withdraw or modify(i) make a Change in Recommendation, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or (ii) approve or recommend, or cause propose publicly to approve or recommend, any Acquisition Proposal or (iii) permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement or obligation with respect toother similar agreement related to an Acquisition Proposal.
(c) The Company shall promptly notify Acquiror (but in no event less than 24 hours following the Company’s initial receipt of any Acquisition Proposal) of the relevant details relating to an Acquisition Proposal (including the identity of the parties and all material terms thereof) which the Company may receive after the date hereof, and shall keep Acquiror informed on a prompt basis as to the status of and any Competing Transactionmaterial developments regarding any such proposal.
(d) The parties acknowledge Notwithstanding Sections 7.8(a) and agree 7.8(b) or any other provision of this Agreement to the contrary, following the receipt by the Company of an Acquisition Proposal (that nothing contained herein was not solicited, encouraged or facilitated in violation of Sections 7.8(a) and 7.8(b)), but prior to receiving the Requisite Shareholder Approval, the Board may (directly or through advisors or representatives):
(i) contact such Person and its advisors solely for the purpose of clarifying the proposal and any material terms thereof and the conditions to and likelihood of consummation, so as to determine whether the proposal for an Acquisition Proposal is reasonably likely to lead to a Superior Proposal; and
(ii) if the Board determines in good faith following consultation with its legal and financial advisors that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal, the Board may:
(A) furnish non-public information with respect to the Company to the Person who made such proposal (provided that the Company (x) has previously or concurrently furnished such information to Acquiror and (y) shall affect or furnish such information pursuant to a confidentiality agreement which is at least as favorable to the Company as the Confidentiality Agreement),
(B) disclose to its Shareholders any information required to be disclosed under applicable Law,
(C) participate in negotiations regarding such proposal, and
(D) following receipt of an Acquisition Proposal that constitutes a Superior Proposal (x) terminate this Agreement pursuant to, and subject to compliance with, Section 4.1(h) and (y) take any way interfere nonappealable, final action that any court of competent jurisdiction orders the Company to take; but in each case referred to in clauses (A) through (D) only if, after complying with this Section 7.8(d), the Board determines in good faith by a majority vote, after consultation with, and after considering advice from, outside legal counsel to the Company’s Obligation , that it must take such action in order to comply company with its fiduciary duties to the Company or its Shareholders under applicable Nevada Law. Nothing in this Section 7.8 or elsewhere in this Agreement shall prevent the Board from complying with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange ActAct with respect to an Acquisition Proposal or from making any required disclosure to the Shareholders if, in the good faith judgment of the Board, after consultation with outside legal counsel, failure to do so would violate its obligations under applicable Law, including Rule 14d-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Board shall be permitted to recommend pursuant to such provision an Acquisition Proposal which is not a Superior Proposal.
(e) The Board shall not take any of the actions referred to in clause (C) or (D) of Section 7.8(d)(ii) unless (i) the Company has given Acquiror at least four Business Days notice, measured from the receipt of notice of such proposal or the receipt of any material change to the terms thereof, of its intent to take such action and (ii) after waiting at least such four- Business Day period and taking into account any amendment to this Agreement entered into or to which Acquiror irrevocably covenants to enter into and for which all internal approvals of Acquiror have been obtained since receipt of such notice, such Superior Proposal remains a Superior Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Royal Gold Inc), Merger Agreement (Battle Mountain Gold Exploration Corp.), Merger Agreement (Royal Gold Inc)
No Solicitation of Transactions. (a) The Subject to Section 7.03(c)(i), the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willwill not, and that it (A) will cause its Subsidiaries and its and their respective officers, directors and employees, and (B) will use its reasonable best efforts to cause its and its Subsidiaries’ agentsSubsidiaries respective investment bankers, advisors attorneys and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative and agents retained by the Company or any of its SubsidiariesSubsidiaries not to (i) solicit, initiate or knowingly encourage the making of any Acquisition Proposal or any inquiries that would reasonably be expected to take lead to any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable Acquisition Proposal; (and ii) engage in negotiations or discussions with, or furnish any event within one information or data to, any Person relating to an Acquisition Proposal; (1iii) Business Day after the Company attains knowledge thereof)enter into any agreement or agreement in principle with respect to any Acquisition Proposal or waive any standstill provision; or (iv) otherwise cooperate with or assist or participate in, orally and in writing, if or knowingly facilitate any proposal or offer, Acquisition Proposal or any inquiry or contact with any Person with respect theretothat would reasonably be expected to lead to an Acquisition Proposal. Promptly following the execution of this Agreement, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its Subsidiaries and its Subsidiaries’ and their officers, directors, officersemployees and investment bankers, employees, agents, advisors attorneys and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) and agents to, immediately cease and cause to be terminated any discussions or negotiations with any Person parties that may have been conducted heretofore be ongoing with respect to a Competing Transaction. The Company any Acquisition Proposal as of the date hereof; provided, however, that the obligations set forth in this Section 7.03(a) shall not prohibit the Company from entertaining an Acquisition Proposal in accordance with Section 7.03(c)(i) that may be made by any such Person after the date hereof, provided, further, that the Company’s release or waiver, in response to an unsolicited inquiry, of any Person from, or waive any provision of, any confidentiality or standstill agreement “standstill” to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiaryshall not violate this Section 7.03(a).
(b) Notwithstanding anything Subject to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor7.03(c)(ii), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, modify in a manner adverse to CIG and the NBCU EntitiesBuyer, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which Board, of the Offer or this Agreement, or (ii) approve or recommend any Acquisition Proposal of any Person other than Buyer. It being understood that a “stop, look and listen” statement or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not be deemed a breach of this Section 7.03(b).
(c) Notwithstanding any other provision of this Agreement:
(i) the Company and the Board may participate in discussions or negotiations with or furnish information to any Person if either (A) the Board determines in good faith, after consultation with its financial advisors, that such Person is reasonably likely to submit to the Company an Acquisition Proposal that is a party Superior Proposal, or (B) the Board determines in good faith, after consultation with its legal counsel, that the failure to participate in such discussions or negotiations or to furnish such information would constitute a breach of the directors’ fiduciary duties under applicable Laws of The Netherlands; provided that any such Person to whom information is furnished shall be required to execute a confidentiality agreement with the Company on terms no less favorable in the aggregate to the Company than those contained in the Nondisclosure Agreement, except that such confidentiality agreement (x) may contain a less restrictive or no standstill restriction and may specifically release such Person from any existing standstill restriction, and (y) shall expressly not prohibit, or adversely affect the Transactionrights of the Company thereunder upon, compliance by the Company with any provision of this Agreement; and
(ii) the Board may be permitted to (A) withdraw or modify in a manner adverse to Buyer, its approval or recommendation of the Offer or this Agreement and make disclosure thereof to the holders of Company Shares, (B) take and disclose to the holders of Company Shares a favorable position with respect to a Superior Proposal (each a “Change in Recommendation”) or (C) make “stop, look and listen” statements or similar communications of the type contemplated by Rule 14d-9(f) under the Exchange Act or disclosure in favor of the Offer to the holders of Company Shares, in each case either with respect to or as a result of a Superior Proposal, if the Board determines in good faith, after consultation with its legal counsel, that the failure to take such action would constitute a breach of the Company’s disclosure obligations or the directors’ fiduciary duties under applicable Laws of The Netherlands, as applicable; provided, however, that the Board shall not be entitled to make a Change in Recommendation until three full business days following delivery of written notice to Buyer (a “Section 7.03(c)(ii) Notice”) from the Board advising Buyer that the Board intends to take such action, including the Tender Offer identity of the Person making the Superior Proposal, a description of the terms and conditions of any such Superior Proposal and a copy of the Reverse Stock Splitproposed transaction agreement for any such Superior Proposal in the form to be entered into (it being understood and agreed that, in the event of an amendment to the financial terms or approve or recommendother material terms of such Superior Proposal, or cause or permit the Company Board shall not be entitled to enter into any letter exercise such right based on such Superior Proposal, as so amended, until three full business days following delivery of intent, agreement or obligation written notice to Buyer of a Section 7.03(c)(ii) Notice with respect toto such Superior Proposal as so amended). In determining whether to terminate this Agreement in response to a Superior Proposal or to make a Change in Recommendation, the Board shall take into account any Competing Transactionproposals made by Buyer to amend the terms of this Agreement.
(d) The parties acknowledge Subject to the foregoing, the Company shall promptly (and agree that nothing contained herein shall affect or in any way interfere event within two calendar days) notify Buyer after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company in connection with an Acquisition Proposal or for access to the Company’s Obligation properties, books or records of the Company by any Person that informs the Board that it is considering making, or has made, an Acquisition Proposal. Such notice to comply Buyer shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, offer or request.
(e) For purposes of this Agreement, a “Superior Proposal” means any Acquisition Proposal, not solicited or initiated in violation of this Section 7.03, made by a Person other than Buyer, Parent or any affiliate of the Company which the Board determines in good faith, after consultation with Rule 14d-9 under its financial advisor, to be more favorable to the Exchange ActCompany and its stakeholders than the transactions contemplated by this Agreement. For purposes of the definition of Superior Proposal, the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%.
Appears in 3 contracts
Samples: Share Purchase Agreement (Aptalis Holdings Inc.), Share Purchase Agreement (Eurand N.V.), Share Purchase Agreement (Axcan Intermediate Holdings Inc.)
No Solicitation of Transactions. (a) Section 5.4.1 The Company agrees that neither that, prior to the Effective Time, it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willshall not, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, shall not authorize or permit any investment banker, attorney Company Subsidiary or accountant retained by it or any Subsidiary) not toCompany Representative, directly or indirectly, to take any action to (iA) solicit, initiate or encourage (including by way of furnishing nonpublic non-public information), solicit, initiate or facilitate any Acquisition Proposal, (B) enter into any agreement with respect to any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Offer or the Merger or any other transaction contemplated by this Agreement or (C) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate, facilitate any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may could reasonably be expected to lead to, any Competing TransactionAcquisition Proposal; provided, (ii) enter into or maintain or continue discussions or negotiations with however, that if, at any Person in furtherance of such inquiries or time prior to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any the consummation of the officersOffer, directors or employees of the Company or any Board determines in good faith, after receiving advice of outside counsel, that it would otherwise constitute a breach of its Subsidiariesfiduciary duties to stockholders, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiariesmay, in response to take any such action. The Company shall notify CIG a Superior Proposal and subject to the NBCU Entities as promptly as practicable (and in any event within one Company’s compliance with Section 5.3.2, (1) Business Day after furnish information with respect to the Company attains knowledge thereof), orally and the Company Subsidiaries to the person making such Superior Proposal pursuant to a customary confidentiality agreement (which will include customary standstill provisions) the benefits of the terms of which are no more favorable to the other party to such confidentiality agreement than those in writing, if any proposal or offer, or any inquiry or contact with any Person the Confidential Agreement and (2) participate in discussions with respect theretoto such Superior Proposal. Upon execution of this Agreement, regarding a Competing Transaction is madethe Company, specifying the material terms its affiliates and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shalltheir respective officers, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agentsrepresentatives legal counsel, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, agents shall cease immediately cease and cause to be terminated any and all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party an Acquisition Proposal and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore with respect thereto furnished to such Person by or on behalf of the Company or any Subsidiarybe returned.
Section 5.4.2 The Company shall immediately advise Parent of any inquiry received by it relating to any potential Acquisition Proposal and of the terms of any proposal or inquiry, including the identity of the person and its affiliates making the same, that it may receive in respect of any such potential Acquisition Proposal, or of any information requested from it (bincluding copies of any such information actually provided) Notwithstanding anything or of any negotiations or discussions being sought to be initiated with it, shall furnish to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information to, and enter into discussions with, Purchaser a Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that copy of any such proposal or offer constitutes inquiry, if it is in writing, or is reasonably likely a written summary of any such proposal or inquiry (as well as of any additional information received by the Company with respect to constitute a Superior an Acquisition Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), thatif it is not in writing, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply and shall keep Parent fully informed on a current basis with its fiduciary obligations respect to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities status of its intent to furnish information any such negotiations or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right developments with respect to negotiate with such party or having the effect of prohibiting foregoing.
Section 5.4.3 Neither the Company from satisfying its obligations under the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall (A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to CIG and the NBCU EntitiesParent, the approval or recommendation by the Company Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock SplitMerger and the adoption and approval of this Agreement, or (B) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal other than the Offer and the Merger or (C) cause or permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement or obligation other agreement related to any Acquisition Proposal other than the Offer and the Merger. Nothing contained in this Section 5.4.3 shall prohibit the Company or the Company Board (1) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect toregard to an Acquisition Proposal (provided that the Company Board shall not withdraw or modify in an adverse manner its approval or recommendation of the Offer, any Competing Transaction.
the Merger or this Agreement except as set forth below) or (d2) The parties acknowledge in the event that a Superior Proposal is made and agree the Company Board determines in good faith, after receiving advice of outside counsel, that nothing contained herein shall affect it would otherwise constitute a breach of its fiduciary duty to stockholders, from withdrawing or in any way interfere with modifying its recommendation of the Company’s Obligation Offer and the Merger prior to consummation of the Offer and no earlier than two (2) business days following the day of delivery of written notice to Parent of its intention to do so, so long as the Company continues to comply with Rule 14d-9 under the Exchange Actall other provisions of this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Xyratex LTD), Merger Agreement (Nstor Technologies Inc), Merger Agreement (Xyratex LTD)
No Solicitation of Transactions. (a) The Unless and until this Agreement is terminated in accordance with its terms, neither the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toSubsidiaries shall, directly or indirectly, (i) solicitthrough any officer, initiate director, agent or otherwise, initiate, solicit or knowingly encourage (including by way of furnishing nonpublic informationnon-public information or assistance), or take any other action to facilitatefacilitate knowingly, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) or enter into or maintain or continue discussions or negotiations negotiate with any Person person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) or agree to, approve to or endorse any Competing Transaction Transaction, or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or knowingly permit any of the officers, directors or employees of the Company such party or any of its Subsidiaries, Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company such party or any of its Subsidiaries, such party's Subsidiaries to take any such action, and the Company shall notify Buyer orally (within one Business Day) and in writing (as promptly as practicable) of all of the relevant details relating to all inquiries and proposals which any officer or director of the Company may receive relating to any of such matters and if such inquiry or proposal is in writing, the Company shall deliver to Buyer a copy of such inquiry or proposal; provided, however, that nothing contained in this Section shall prohibit the Board from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer or prohibit the Board from taking such other actions as may be required to comply with its fiduciary obligations. If the Board determines with the advice of counsel that failure to do so could be held to violate its fiduciary duties, it may provide information in response to an unsolicited proposal. If the Company receives a bona fide proposal for a Competing Transaction that the Board determines in good faith (based on the advice of a nationally recognized financial advisor) may provide greater value to the Company and its stockholders than this Agreement, it may enter into negotiations with respect to such proposal. The Company shall will notify CIG and the NBCU Entities as promptly as practicable (and in Buyer of any event within one (1) such superior proposal not less than two Business Day after the Company attains knowledge thereof), orally and in writing, if Days prior to entering into any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore definitive agreement with respect to a Competing Transaction. The Company ; provided, however, that in no event shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information to, and enter into discussions with, a Person who has made definitive agreement with respect to a Competing Transaction less than five Business Days after the Company's initial notification to Buyer of an unsolicited, written, bona fide inquiry or proposal or offer regarding relating to a Competing Transaction. Within the two-Business-Day or five-Business-Day period referred to above, and the Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who Buyer may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person propose an executed 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 the Transaction Agreements to which it is a party)improved transaction.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Prometheus Southeast Retail LLC), Stock Purchase Agreement (Fac Realty Trust Inc), Stock Purchase Agreement (Lfsri Ii Alternative Partnership L P)
No Solicitation of Transactions. (a) The Company agrees shall, and shall cause each Company Subsidiary and Company Representative to, immediately cease and cause to be terminated any existing discussions or negotiations with any Third Parties (other than the Parent Representatives) that neither it nor any Subsidiary nor any may be ongoing as of the directors, officers or employees of it or any Subsidiary willdate hereof with respect to a Takeover Proposal. The Company shall not, and that it will shall cause its each Company Subsidiary and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Company Representative not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, including any proposal or offer to its the Company’s stockholders) that constitutes, or may reasonably be expected to lead to, any Competing TransactionTakeover Proposal, (ii) enter into any Takeover Proposal Agreement, (iii) enter into, maintain, continue or maintain otherwise engage or continue participate in any negotiations or discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for that constitutes, or may reasonably be expected to lead to a Competing TransactionTakeover Proposal, (iiiiv) agree to, approve, endorse or recommend any Takeover Proposal, (v) take any action to approve a Third Party becoming an “interested stockholder”, or endorse to approve any Competing Transaction or enter into any letter transaction, for purpose of intent or other Contract relating to any Competing Transaction Section 203 of the DGCL or (ivvi) resolve, propose or agree, or authorize or permit any Company Representative, to do any of the officers, directors or employees foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of the Company Subsidiaries or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained Company Representative shall be deemed to be a breach by the Company of this Section 6.4(a). Unless such action would be inconsistent with the Company Board’s fiduciary obligations to the Company and its stockholders under applicable Law (in which case such release or any of its Subsidiarieswaiver shall also apply to the Confidentiality Agreement, to take any such action. The as applicable), the Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shallnot, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, not permit any investment banker, attorney or accountant retained by it or any Subsidiary) Company Subsidiary to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person Third Party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees shall, to the extent possible, promptly take all steps necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality or standstill agreement. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with its such Person’s consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Company Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished required to be returned (or, if applicable, destroyed) by such Person by or on behalf under the terms of the Company or any Subsidiaryapplicable confidentiality agreement and, if requested by Parent, to enforce such Person’s obligation to do so.
(b) Notwithstanding anything to the contrary in any provisions of this Section 10.056.4, at any time prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicableAcceptance Time, the Board Company may (i) provide access to its properties, Contracts, personnel, books and records and furnish information and data with respect to the Company and the Company Subsidiaries to, and enter into (ii) participate in discussions or negotiations with, a Person who has made an unsolicitedmaking a Takeover Proposal that did not arise or result from a violation of this Section 6.4 if, writtenprior to providing such access, bona fide proposal furnishing such information and entering into such discussions or offer regarding a Competing Transactionnegotiations, and the Company Board has (iA) determined, determined in its good faith judgment (after consultation with having received the advice of its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel and financial advisors of internationally recognized reputation) that (who may 1) such Takeover Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and (2) the Company’s regularly engaged outside legal counsel)failure to furnish such information to, that, in light of or enter into such Superior Proposaldiscussions with, the furnishing of Person who made such information or entering into discussions is required Takeover Proposal would be reasonably expected to comply be inconsistent with its the Company Board’s fiduciary obligations to the Company and its stockholders under applicable Law, (iiiB) provided written notice to CIG and the NBCU Entities Parent of its intent to furnish information or enter into discussions with such Person at least twenty-four (24) hours prior to taking any such action, and (ivC) obtained from such Person an executed confidentiality agreement Acceptable Confidentiality Agreement (it being understood that (1) the Company may enter into an Acceptable Confidentiality Agreement without a “standstill” or similar provision or with a “standstill” or similar provision less restrictive with respect to such confidentiality agreement Person than the terms of any “standstill” or similar provision in the Confidentiality Agreement if it waives or similarly modifies the “standstill” or similar provision in the Confidentiality Agreement and (2) an Acceptable Confidentiality Agreement and any related agreements shall not include any provision calling for any granting such Person exclusive right rights to negotiate with such party the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, concurrently with the Transaction Agreements notice provided in clause (ii)(B), delivered to which it is Parent a partycopy of such Acceptable Confidentiality Agreement (for informational purposes only).
(c) Except as otherwise set forth in this Section 6.4(c) or Section 6.4(d), neither the Company Board nor any committee thereof may (i) withdraw (or not continue to make), modify, qualify or amend, or publicly propose to withdraw (or not continue to make), modify, qualify or amend, the Company Board Recommendation, (ii) make any public statement or take any action inconsistent with the Company Board Recommendation or (iii) approve, recommend or adopt, or publicly propose to approve, recommend or adopt, any other transaction of the type described in the definition of “Takeover Proposal” (any action described in the foregoing clauses
(i) (iii), a “Company Adverse Recommendation Change”). Notwithstanding the foregoing, if at any time prior to the Acceptance Time and in response to the receipt of a Superior Proposal that did not arise or result from any breach of this Section 6.4(c), the Company Board determines in its good faith judgment (after having received the advice of its outside legal counsel), that the failure by the Company Board to (A) make a Company Adverse Recommendation Change, (B) terminate this Agreement or (C) approve, endorse, adopt, recommend or enter into any Takeover Proposal Agreement with respect to such Superior Proposal, in each case, would be inconsistent with the Company Board’s fiduciary obligations to the Company and its stockholders under applicable Law, the Company Board may, with respect to such Superior Proposal, take any of the actions set forth in the foregoing clauses (A), (B) and (C); provided, that the Company Board shall not be entitled to exercise its right to take any of the actions set forth in the foregoing clauses (A), (B) or (C) pursuant to this Section 6.4(c) unless:
(1) the Company has provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to take any of the actions set forth in the foregoing clauses (A), (B) and (C) and the manner in which it intends to do so, specifying the information required to be included in any notice required to be delivered to Parent under Section 6.4(e);
(2) Parent does not, within three (3) Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make a written offer or proposal to revise the terms of this Agreement in a manner that the Company Board determines in its good faith judgment, after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel, to be at least as favorable to the Company’s stockholders as such Superior Proposal; provided, however, that during the Notice Period the Company shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) to make such revisions to the terms of this Agreement; provided, further, that any amendment to the terms of such Superior Proposal during the Notice Period shall require a new written notice of the terms of such amended Superior Proposal from the Company and an additional Notice Period that satisfies this Section 6.4(c)(2); and
(3) in the event of a termination of this Agreement pursuant to the foregoing clause (B), the Company pays the Company Termination Fee pursuant to Section 8.4(a) to Parent prior to or concurrently with such termination.
(d) Notwithstanding the foregoing, at any time prior to the Acceptance Time, in response to an Intervening Event, the Company Board may make a Company Adverse Recommendation Change if the Company Board determines in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that, in light of such Intervening Event, the failure of the Company Board to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the members of the Company Board to the Company and its stockholders under applicable Law; provided, that the Company shall not be entitled to exercise its right to make a Company Adverse Recommendation Change pursuant to this Section 6.4(d) unless:
(i) the Company has provided written notice to Parent (a “Notice of Intervening Event”) advising Parent that an Intervening Event has occurred, describing the applicable material fact, event, change, development or set of circumstances giving rise to the Intervening Event, indicating that the Company Board intends to make a Company Adverse Recommendation Change and the manner in which it intends (or may intend) to do so and including written evidence of the determination of the Company Board that the applicable material fact, event, change, development or set of circumstances constitutes an Intervening Event; and
(ii) Parent does not, within three (3) Business Days of receipt of the Notice of Intervening Event, make an offer or proposal to revise the terms of this Agreement, including an increase in, or modification of, the Offer Price, in a manner that the Company Board determines in its good faith judgment, after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel, is on such terms and conditions that the failure of the Company Board to make a Company Adverse Recommendation Change would no longer be inconsistent with the Company Board’s fiduciary duties to the Company and its stockholders under applicable Law.
(e) The Company shall promptly (and in any event within one (1) Business Day after the Company attains knowledge thereof) advise Parent in writing of receipt by the Company, any Company Subsidiary or any Company Representative of any proposal, inquiry, offer or request (or any amendment thereto) relating to, that constitutes, or may reasonably be expected to lead to, a Takeover Proposal, including any request for discussions or negotiations and, any request for information relating to the Company or any Company Subsidiary or for access to the business, properties, assets, books or records of the Company or any Company Subsidiary. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the material terms and conditions (if any) of such proposed Takeover Proposal, and the Company shall promptly (and in any event within one (1) Business Day after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent informed of the general status and material details of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, inquiry, offer or request and (ii) any information requested of or provided by the Company pursuant to Section 6.4(b). The Company agrees that it shall simultaneously provide to Parent any nonpublic information concerning the Company that may be made available pursuant to Section 6.4(b) to any other Person in response to any such proposal, inquiry, offer or request (or any amendment thereto).
(f) Nothing in this Section 6.4 shall prohibit or restrict the Company or the Company Board from taking and/or disclosing to the stockholders of the Company a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act; provided, however, that in no event shall this Section 6.4(f) affect the obligations of the Company specified in Section 6.4(c) and Section 6.4(d); provided, further, that neither the Company Board nor any committee thereof shall withdraw make a Company Adverse Recommendation Change in connection with such disclosure (it being understood that any “stop, look and listen” communication by or modify, or propose on behalf of the Company pursuant to withdraw or modify, in Rule 14d-9(f) shall not be considered a manner adverse to CIG and the NBCU Entities, Company Adverse Recommendation Change). Any Company Adverse Recommendation Change shall not change the approval or recommendation by the Board or any such committee of the Transaction Agreements Company Board for purposes of causing any state takeover statute or other state Law to which be inapplicable to the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactiontransactions contemplated by this Agreement.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Celera CORP)
No Solicitation of Transactions. (a) The Company agrees that neither it will not, nor any Subsidiary nor will it permit any of the directors, officers or employees of it or any Subsidiary willits Subsidiaries to, and that it will instruct and cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic non-public information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including, without limitation, including any proposal or offer to its the Company’s stockholders) that constitutes), or may reasonably be expected with respect to lead to, any Competing Company Transaction, (ii) enter into into, maintain, continue or maintain otherwise engage or continue participate in any discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for with respect to a Competing Company Transaction, (iii) agree to, approve approve, endorse, recommend or endorse consummate any Competing Transaction or Company Transaction, (iv) enter into any letter of intent or other Contract relating to any Competing Company Transaction Agreement or (ivv) resolve, propose or agree, or authorize or permit any Representative, to do any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments)foregoing. The Company shall, and shall direct or cause its Subsidiaries to, and shall instruct and cause its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been Persons (other than Parent and its Affiliates) conducted heretofore prior to the execution of this Agreement by the Company or any of its Subsidiaries or Representatives with respect to a Competing Company Transaction. The Company shall not, and shall cause its Subsidiaries not to, and the Company shall instruct and cause its Representatives not to, release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it or one of its Affiliates is a party and in connection with a Competing Company Transaction, unless the Company also agrees Board determines in its good faith judgment, after consulting with outside legal counsel, that failure to take any such action would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law. The Company shall, and shall cause its Subsidiaries to, promptly request each Person (other than Parent and its Affiliates) that has heretofore executed a confidentiality agreement with the Company or any of its Subsidiaries in connection with its such Person’s consideration of acquiring a Competing Company Transaction (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any), to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to seek to enforce such Person’s obligation to do so.
(b) The Company shall promptly (and in any event within twenty-four (24) hours after the Company attains knowledge thereof) notify Parent, orally and in writing, after the receipt by the Company or on behalf any of its Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Company Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Affiliates or for access to the business, properties, assets, books or records of the Company or any Subsidiaryof its Affiliates. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including in reasonable detail the terms and conditions (if any) of such proposed Competing Company Transaction, and the Company shall promptly (and in any event within twenty-four (24) hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed of the status and reasonable details of (including discussions with respect thereto or amendments to) any such proposal, inquiry, offer or request. The Company agrees that it shall substantially simultaneously provide to Parent any non-public information concerning the Company that may be made available pursuant to Section 7.01(c) to any other Person in response to any such proposal, inquiry, offer or request (including discussions with respect thereto or any amendment to) unless such information has previously been provided or made available by the Company to Parent.
(bc) Notwithstanding anything to the contrary in this Section 10.057.01, at any time prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicableAcceptance Time, the Board Company may furnish information to, and enter into discussions and negotiations with, a any Person (or any of such Person’s Representatives) who has made an unsolicited, a written, bona fide proposal or offer regarding with respect to a Competing TransactionCompany Transaction that did not arise or result from any material breach of Section 7.01(a) if, prior to furnishing such information and entering into such discussions and negotiations, (A) the Company Board has (i) determined, in its good faith judgment (after consultation consulting with its a financial advisoradvisor of nationally recognized reputation and outside legal counsel), that such proposal or offer constitutes constitutes, or is reasonably likely to constitute lead to, a Superior Proposal, (iiB) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) has provided written notice to CIG and the NBCU Entities Parent of its intent to furnish information or to, and enter into discussions with and negotiations with, such Person and (ivC) the Company has obtained (to the extent not already obtained) from such Person an executed confidentiality agreement Acceptable Confidentiality Agreement (it being understood that such confidentiality agreement an Acceptable Confidentiality Agreement and any related agreements shall not include any provision calling for any granting such Person exclusive right rights to negotiate with such party the Company or having the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements this Agreement) and, promptly upon its execution, delivered to which it is Parent a party)copy of such Acceptable Confidentiality Agreement.
(cd) Except as otherwise provided set forth in this AgreementSection 7.01(d), neither the Company Board nor any committee thereof shall withdraw (i) withdraw, qualify, modify, amend or modifyfail to make, or propose publicly to withdraw withdraw, qualify, modify or modifyamend the Company Board Recommendation (or fail to include the Company Board Recommendation in the Schedule 14D-9), (ii) make any public statement or take any action inconsistent with the Company Board Recommendation or (iii) approve or adopt, or recommend the approval or adoption of, or publicly propose to approve or adopt, any Competing Company Transaction (any of the actions described in (i), (ii) or (iii), a “Change in the Company Board Recommendation”). Notwithstanding the foregoing:
(i) the Company Board may make a Change in the Company Board Recommendation if (A) other than in connection with or as a result of the making of a Competing Company Transaction, a material development or change in circumstances that was not known or, with respect to developments or changes in circumstances relating to the Company and its Subsidiaries, reasonably foreseeable to the Company Board on the date of this Agreement and occurs or arises after the date of this Agreement, which material development or change in circumstances becomes known to the Company Board prior to the Acceptance Time (such material development or change in circumstances being referred to as an “Intervening Event”) (it being understood that in no event shall the receipt, existence or terms of a Competing Company Transaction constitute an Intervening Event), (B) the Company Board determines in its good faith judgment, after consulting with its outside legal counsel, that an Intervening Event has occurred and a failure to make a Change in the Company Board Recommendation would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law, (C) the Company Board does not effect, or cause the Company to effect, a Change in the Company Board Recommendation at any time within three Business Days, or such shorter period in the event that the Acceptance Time is scheduled to occur in less than three Business Days, after Parent receives written notice from the Company that the Company Board has determined that an Intervening Event requires the Company Board to effect, or cause the Company to effect, a Change in the Company Board Recommendation and describing in reasonable detail the circumstances underlying such determination (provided, a new notice shall be required with respect to any material change in circumstances and a new notice period of three Business Days, or shorter period in the circumstances above, shall begin) and (D) during such applicable period, the Company engages in good faith negotiations with Parent (to the extent that Parent desires to negotiate) to amend this Agreement in such a manner that obviates the need for the Company Board to effect, or cause the Company to effect, a Change in the Company Board Recommendation; or
(ii) if at any time prior to the Acceptance Time and in response to the receipt of an offer or proposal with respect to a Competing Company Transaction that did not arise or result from any material breach of Section 7.01(a), the Company Board determines in its good faith judgment (after consulting with a financial advisor of nationally recognized reputation and outside legal counsel) that such offer or proposal constitutes a Superior Proposal and determines in its good faith judgment, after consulting with its outside legal counsel, that a failure to make a Change in the Company Board Recommendation with respect to such Superior Proposal would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law, then the Company Board may, with respect to such Superior Proposal, (x) make a Change in the Company Board Recommendation or (y) cause the Company to terminate this Agreement pursuant to Section 9.01(f) in order to enter into a definitive agreement providing for such Superior Proposal if, in each case:
(1) the Company has provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to make a Change in the Company Board Recommendation or terminate this Agreement pursuant to Section 9.01(f) and describing in reasonable detail the terms and conditions of such Superior Proposal; and
(2) Parent does not, within three Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make a written offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner adverse that the Company Board determines in its good faith judgment, after consulting with a financial advisor of nationally recognized reputation and outside legal counsel, to CIG and be at least as favorable to the NBCU EntitiesCompany’s stockholders as such Superior Proposal; provided, however, that, during the Notice Period, the approval or recommendation by Company shall negotiate in good faith with Parent (to the Board or extent Parent desires to negotiate) regarding any Revised Transaction Proposal; provided, further, that any amendment to the terms of such committee Superior Proposal during the Notice Period shall require a new written notice of the Transaction Agreements to which material terms of such amended Superior Proposal from the Company is a party and the Transactionan additional three Business Day Notice Period, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactionto the Company’s obligations to negotiate in good faith with Parent.
(de) The parties acknowledge Nothing contained in this Agreement shall prohibit the Company or the Company Board from (i) disclosing to its stockholders a position contemplated by Rules 14d-9 and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 14e-2(a) promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) making any disclosure to its stockholders if the Company Board determines in its good faith judgment, after consulting with its outside legal counsel, that a failure to make such disclosure would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law; provided, however, that (1) in no event shall this Section 7.01(e) affect the obligations specified in Section 7.01(d) and (2) any such disclosure (other than issuance by the Company of a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that addresses or relates to the approval, recommendation or declaration of advisability by the Company Board with respect to this Agreement or a Competing Company Transaction shall be deemed to be a Change in the Company Board Recommendation unless the Company Board in connection with such communication publicly states that its recommendation with respect to this Agreement has not changed or refers to the prior recommendation of the Company Board, without disclosing any Change in the Company Board Recommendation.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Essendant Inc), Merger Agreement (Staples Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the Company, its affiliates and their respective officers, directors, officers employees, representatives and agents shall immediately cease any existing discussions or employees negotiations, if any, with any parties conducted heretofore with respect to any Business Combination Proposal (as hereinafter defined). Prior to the purchase of it or any Subsidiary willShares pursuant to the Offer, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not tothe Company may, directly or indirectly, (i) solicitfurnish information and access, initiate in each case only in response to a request for such information or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating access to any Competing Transaction person made after the date hereof which was not encouraged, solicited or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained initiated by the Company or any of its Subsidiariesaffiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms substantially similar to those contained in the Confidentiality Agreement, and may participate in discussions and negotiate with such person concerning any Business Combination Proposal, if, and only to the extent that, (i) such person has submitted a written Business Combination Proposal to the Board of Directors of the Company relating to any such transaction, (ii) the Board, after consultation with its independent financial advisers, determines in good faith that (x) the person making such Business Combination Proposal is reasonably capable of completing such Business Combination Proposal, taking into account the legal, financial, regulatory and other aspects of such Business Combination Proposal and the person making such Business Combination Proposal and (y) such Business Combination Proposal would reasonably be expected to be a Superior Proposal (as defined below) and (iii) the Board determines in good faith, based upon the advice of outside counsel to the Company, that, assuming such Business Combination Proposal is a Superior Proposal, failure to take any such actionaction would violate its fiduciary duties under applicable law. The Company Board shall notify CIG and the NBCU Entities as Parent promptly as practicable (and but in any event within one (124 hours) Business Day after the Company attains knowledge thereof), orally and in writing, if any such proposal or offeris made and shall in such notice, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying indicate in reasonable detail the identity of the offeror and the material terms and conditions thereof and the identity of the party making such any proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.48 44
Appears in 3 contracts
Samples: Merger Agreement (Rohm & Haas Co), Merger Agreement (Morton Acquisition Corp), Merger Agreement (Rohm & Haas Co)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause not authorize or permit its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney financial advisor, attorney, accountant or accountant other representative retained by it or any SubsidiarySubsidiary (such agents, advisors and other representatives, each, a “Representative” and collectively, “Representatives”)) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing nonpublic information)) the making, submission or take any other action to facilitate, any inquiries or the making announcement of any proposal Transaction Proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person person or entity with respect to or in furtherance of such inquiries or order to obtain a proposal Transaction Proposal, or offer for a Competing Transaction, (iii) agree to, approve approve, endorse or endorse recommend any Competing Transaction Proposal or enter into any letter of intent or other Contract contract, agreement or commitment contemplating or otherwise relating to any Competing Transaction or Proposal (iv) authorize or permit any of the officersexcept, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiarieswith respect to clause (iii), to take any such actionthe extent specifically permitted pursuant to the provisions of Section 7.05(c)). The Company shall notify CIG and the NBCU Entities Parent as promptly as practicable (and in any event within one (1) Business Day business day after the Company attains knowledge thereof), orally and in writing, if any proposal or offerTransaction Proposal, or any inquiry or contact with any Person person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact Transaction Proposal (including any material amendments or proposed material amendmentsamendments thereto). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors employees and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Person parties that may have been conducted heretofore with respect to a Competing TransactionTransaction Proposal. The Company shall not release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to shall promptly request each Person person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or making any SubsidiaryTransaction Proposal, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person person by or on behalf of the Company or any SubsidiarySubsidiary and, if requested by Parent, to promptly enforce such person’s obligation to do so.
(b) Notwithstanding anything to the contrary in this Section 10.057.05, at any time prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicableAcceptance Time, the Board Company and its Subsidiaries’ directors, officers, employees and their respective Representatives may furnish information totake any of the following actions with respect to a person who, and enter into discussions withafter the date of this Agreement, a Person who has made an unsolicited, a written, bona fide proposal Transaction Proposal not solicited in violation of Section 7.05(a) or offer regarding the exclusivity agreement, dated November 14, 2007 (the “Exclusivity Agreement”), between Parent and the Company (it being understood that a Competing TransactionTransaction Proposal made by a person prior to the date of this Agreement without further action by such person shall not be considered to be made after the date of this Agreement), and but only if, prior to furnishing such information or entering into such discussions, the Board has (iA) determined, in its good faith judgment (after consultation with its having received the advice of a financial advisoradvisor of nationally recognized reputation), that such proposal or offer constitutes constitutes, or is reasonably likely to constitute result in, a Superior Proposal, (iiB) determined, in its good faith judgment after consultation with outside independent legal counsel (who may be the Company’s regularly engaged outside independent legal counsel), that, in light of such Superior Transaction Proposal, the furnishing of failure to take such information or entering into discussions is required action would be reasonably likely to comply be inconsistent with its fiduciary obligations to the Company and its stockholders under applicable Law, (iiiC) provided written notice to CIG and the NBCU Entities Parent of its intent to furnish information or enter into discussions with such Person person at least 24 hours prior to taking any such action, and (ivD) obtained from such Person person an executed confidentiality agreement on terms with respect to confidential information that are 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):
(i) furnish nonpublic information to such third party making the Transaction Agreements Proposal and its employees and Representatives; provided, however, that the Company shall promptly provide or make available to which it Parent any non-public information concerning the Company or any of its Subsidiaries that is a party)provided to the person making the Transaction Proposal or employee or Representative thereof if such information was not previously provided or made available to Parent; and
(ii) engage in discussions or negotiations with such third party and its employees and Representatives with respect to the Transaction Proposal.
(c) Except as otherwise provided set forth in this AgreementSection 7.05(c), neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a any manner adverse to CIG and the NBCU EntitiesParent or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Transaction Agreements to which Offer, the Company is a party and the Merger or any other Transaction, including (ii) take any action to make the Tender Offer and provisions of Section 203 of the Reverse Stock Split, DGCL inapplicable to any transaction other than the Transactions or (iii) approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing TransactionTransaction Proposal (any such action listed in (i), (ii) or (iii), a “Change of Recommendation”). Notwithstanding the foregoing, if the Board determines, in its good faith judgment prior to the time of acceptance for payment of Shares pursuant to the Offer (the “Acceptance Time”) and after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that the failure to make such a Change of Recommendation would be reasonably likely to be inconsistent with its fiduciary obligations under applicable Law, the Board may make a Change of Recommendation, but only if, prior to making such Change of Recommendation, (i) the Board provides written notice to Parent (a “Notice of Change of Recommendation”) advising Parent that it intends to effect a Change of Recommendation and the manner in which it intends to do so (it being understood and agreed that the Company shall not make any such Change of Recommendation unless (A) in the event that the Company shall have previously received a Superior Proposal, four (4) business days shall have elapsed since Parent’s receipt of such Notice of Change of Recommendation or (B) in the event that the Company shall not have previously received a Superior Proposal, three (3) business days shall have elapsed since Parent’s receipt of such Notice of Change of Recommendation) and (ii) if the Board shall have previously received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the person making such Superior Proposal, providing to Parent copies of the definitive forms of all agreements pertaining to such Superior Proposal; provided, however, that the Board shall not make any Change of Recommendation unless (i) prior to making such Change of Recommendation, the Board determines, after taking into account any modifications to the terms of the Transactions that are proposed by Parent within three (3) or four (4) business days of Parent’s receipt of the Notice of Change of Recommendation, that a failure to make such Change of Recommendation would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (ii) if the Board shall have previously received a Superior Proposal, the Company simultaneously terminates this Agreement in accordance with Section 9.01(d)(ii) (and pays to Parent the Fee in accordance with Section 9.03 and enters into an agreement with respect to a Superior Proposal). The Company agrees that during the three (3) or four (4) business day period prior to its effecting a Change in Recommendation, the Company and its employees, officers, directors shall, and the Company shall direct its Representatives to, negotiate in good faith with Parent and its employees, officers, directors and Representatives regarding any revisions to the terms of the Transactions that are proposed by Parent.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.For purposes of this Agreement:
Appears in 3 contracts
Samples: Merger Agreement (Genesis Microchip Inc /De), Merger Agreement (Stmicroelectronics Nv), Merger Agreement (Genesis Microchip Inc /De)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Unless and until this Agreement is terminated in accordance with its terms, none of the directors, officers Company or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toSubsidiaries shall, directly or indirectly, (i) solicitthrough any officer, initiate director, agent or otherwise, initiate, solicit or knowingly encourage (including by way of furnishing nonpublic informationnon-public information or assistance), or take any other action to facilitatefacilitate knowingly, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) or enter into or maintain or continue discussions or negotiations negotiate with any Person person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) or agree to, approve to or endorse any Competing Transaction Transaction, or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or knowingly permit any of the officers, directors or employees of the Company such party or any of its Subsidiaries, Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company such party or any of its Subsidiaries, such party's Subsidiaries to take any such action, and the Company shall notify Buyer orally (within one Business Day) and in writing (as promptly as practicable) of all of the relevant details relating to all inquiries and proposals which any officer or director of the Company may receive relating to any of such matters and if such inquiry or proposal is in writing, the Company shall deliver to Buyer a copy of such inquiry or proposal; provided, however, that nothing contained in this Section shall prohibit the Board from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer or prohibit the Board from taking such other actions as may be required to comply with its fiduciary obligations. If the Board determines with the advice of counsel that failure to do so could be held to violate its fiduciary duties, it may provide information in response to an unsolicited proposal. If the Company receives a bona fide proposal for a Competing Transaction that the Board determines in good faith (based on the advice of a nationally recognized financial advisor) may provide greater value to the Company and its stockholders than the transactions contemplated by this Agreement, it may enter into negotiations with respect to such proposal. The Company shall will notify CIG and the NBCU Entities as promptly as practicable (and in Buyer of any event within one (1) such superior proposal not less than two Business Day after the Company attains knowledge thereof), orally and in writing, if Days prior to entering into any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore definitive agreement with respect to a Competing Transaction. The Company ; provided, however, that in no event shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information to, and enter into discussions with, a Person who has made definitive agreement with respect to a Competing Transaction less than five Business Days after the Company's initial notification to Buyer of an unsolicited, written, bona fide inquiry or proposal or offer regarding relating to a Competing Transaction. Within the two-Business-Day or five-Business-Day period referred to above, and the Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who Buyer may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person propose an executed 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 the Transaction Agreements to which it is a party)improved transaction.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Arv Assisted Living Inc), Stock Purchase Agreement (Prometheus Assisted Living LLC), Stock and Note Purchase Agreement (Prometheus Assisted Living LLC)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any no Group Company and none of the directors, directors or officers or employees of it or any Subsidiary willGroup Company shall, and that it will cause shall direct its and its Subsidiaries’ agents, advisors and other representatives Representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Group Company), not to, in each case, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic informationinformation in a manner designed to encourage), or take any other action to facilitate, any inquiries or the making of any proposal or offer Acquisition Proposal (including, without limitation, any proposal or offer to its stockholdersshareholders) that constitutes, or may would reasonably be expected to lead to, any Competing TransactionAcquisition Proposal, or (ii) enter into or into, maintain or continue discussions or negotiations with with, or provide any Person nonpublic information relating to any Group Company or the Transactions to, any person or entity in furtherance of such inquiries connection with, or in order to obtain a proposal obtain, an Acquisition Proposal, or offer for a Competing Transaction, (iii) agree to, approve approve, adopt, endorse or recommend (or publicly propose to agree to approve, adopt, endorse or recommend) any Competing Transaction Acquisition Proposal, or enter into any letter of intent intent, Contract, commitment or other Contract obligation contemplating or otherwise relating to to, or consummate, any Competing Transaction Acquisition Proposal , or (iv) authorize or permit any of the officers, directors or employees Representatives of the any Group Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such actionaction set forth in clauses (a)(i) — (a)(iii) of this Section 6.04 (in each case, other than to the extent expressly permitted pursuant to Section 6.04(b) or Section 6.04(c)). The Company shall notify CIG and the NBCU Entities Parent in writing as promptly as practicable (and in any event within one forty-eight (148) Business Day hours after the Company attains has knowledge thereof), orally and in writing, if of any proposal or offer, or any request for information or other inquiry or contact with any Person with respect theretorequest, regarding a Competing Transaction is madethat could reasonably be expected to lead to an Acquisition Proposal, specifying (x) the material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the party making such proposal or offer or inquiry or contact contact, and (including material amendments or proposed material amendments)z) whether the Company has determined to provide confidential information to such person. The Company shallshall keep Parent informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material terms and conditions thereof) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements. The Company immediately shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transactionan Acquisition Proposal. The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Third Party which prohibits the Company from providing such information to Parent, or release any Person Third Party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiaryan Acquisition Proposal.
(b) Notwithstanding anything Subject to compliance with the contrary in other provisions of this Section 10.056.04, prior to obtaining the Exchange Offer Closing or the Exchange Offer Expiration, as applicableRequisite Company Vote, the Company Board may furnish information to, and enter into discussions with, a Person who directly or indirectly through the Company’s Representatives (i) contact any Third Party that has made an unsolicited, written, bona fide proposal or offer regarding an Acquisition Proposal that was not initiated or solicited in breach of Section 6.04(a) solely in order to clarify the terms and conditions thereof so as to assess whether such proposal or offer constitutes or is reasonably expected to result in a Competing TransactionSuperior Proposal, and (ii) furnish information to, and enter into discussions with, such Third Party to the Board extent the Special Committee has (iA) determined, determined in its good faith judgment (after consultation with its a financial advisor)advisor who shall be an internationally recognized investment banking firm and outside legal counsel, as applicable) that such proposal or offer constitutes or is reasonably likely to constitute result in a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), and that, in light of such Superior Proposal, the furnishing of failure to furnish such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person Third Party would be reasonably likely to violate the directors’ fiduciary duties under applicable Law, and (ivB) obtained from such Person person an executed confidentiality agreement on terms no less favorable to the Company in the aggregate 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); provided that the Transaction Agreements Company shall provide written notice to which it Parent at least one (1) Business Day prior to taking any action set forth in clauses (b)(i) of this Section 6.04, provide written notice to Parent at least forty-eight (48) hours prior to taking any action set forth in (b)(ii) of this Section 6.04 and shall concurrently make available to Parent any material information concerning any Group Company that is a party)provided to any such person and that was not previously made available to Parent or its Representatives.
(c) Except as otherwise provided set forth in this AgreementSection 6.04(c), neither the Company Board nor any committee thereof shall withdraw (i) (A) withhold, withdraw, qualify, amend or modify, or propose to withdraw or modify, modify in a manner adverse to CIG and the NBCU EntitiesParent or Merger Sub, or propose (publicly or otherwise) to withhold, withdraw, qualify, amend or modify in a manner adverse to Parent or Merger Sub, the approval Company Recommendation or recommendation (B) if a tender offer or exchange offer that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by its shareholders within ten (10) Business Days after commencement (any of such actions described in the Board foregoing clause (A) or any such committee of the Transaction Agreements to which (B), a “Change in the Company is a party and the TransactionRecommendation”) or (C) adopt, including the Tender Offer and the Reverse Stock Splitapprove, or approve endorse or recommend, or propose (publicly or otherwise) to adopt, approve, endorse or recommend any Acquisition Proposal, provided that a “stop, look and listen” communication by the Company Board or the Special Committee pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication with respect to an Acquisition Proposal, which did not result from any breach of this Section 6.04(c) shall not be deemed to be a Change in the Company Recommendation, nor (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement Contract, commitment or obligation with respect toto any Acquisition Proposal. Notwithstanding the foregoing but subject to compliance by the Company and the Company Board with this Section 6.04, from the date of this Agreement and at any Competing Transaction.time prior to the receipt of the Requisite Company Vote, if the Company has received an unsolicited, bona fide written Acquisition Proposal and the Special Committee determines, in its good faith judgment, upon advice by a financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel, that such proposal or offer constitutes a Superior Proposal and failure to make a Change in the Company Recommendation would be reasonably likely to violate the directors’ fiduciary duties under applicable Law, the Company Board may, upon the unanimous recommendation of the Special Committee, effect a Change in the Company Recommendation with respect to such Superior Proposal but only if:
(d1) The parties acknowledge and agree that nothing contained herein prior to effecting a Change in the Company Recommendation, the Company shall affect or in any way interfere have complied with the Company’s Obligation requirements of Sections 6.04(a) and 6.04(b) and shall (x) provide at least thirty (30) days’ prior written notice to Parent (the “Notice Period”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions 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 the manner in which it intends (or may intend) to do so, it being understood that such notice or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company Recommendation, (y) negotiate with and cause its financial and legal advisors to negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal would cease to constitute a Superior Proposal or so that a failure to effect a Change in the Company Recommendation would no longer be reasonably likely to violate the directors’ fiduciary duties under applicable Law, and (z) permit Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and any proposed modifications or adjustments with respect thereto (to the extent Parent desires to make such presentation) and consider in good faith any modifications or adjustments regarding this Agreement proposed by Parent; provided that any material modifications to such Acquisition Proposal that the Special Committee previously determined to be a Superior Proposal shall be deemed a new Acquisition Proposal and the Company shall be required to again comply with Rule 14d-9 the requirements of this Section 6.04(c);
(2) Parent has not exercised its right of first offer under the Exchange ActInvestor Documents with respect to such Superior Proposal prior to the end of the Notice Period; and
(3) following the end of the Notice Period (and any renewed period thereof), the Special Committee shall have unanimously determined in good faith (after consultation with a financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel, as applicable) after considering the terms of any modifications or adjustments to this Agreement proposed by Parent, that (x) such Acquisition Proposal continues to constitute a Superior Proposal and (y) with respect to a Change in the Company Recommendation, failure to effect a Change in the Company Recommendation would be reasonably likely to violate the directors’ fiduciary duties under applicable Laws, and shall have communicated its unanimous recommendation to the Company Board to effect a Change in the Company Recommendation with respect to such Superior Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Alibaba Group Holding LTD), Merger Agreement (Ali YK Investment Holding LTD), Merger Agreement (Youku Tudou Inc.)
No Solicitation of Transactions. (a) The Company (i) Cigna agrees that neither that, during the term of this Agreement, it nor any Subsidiary nor any of the shall not, and it shall cause its Subsidiaries and its and their respective directors, officers or employees of it or any Subsidiary willofficers, employees, agents and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any Subsidiaryof its Subsidiaries) not to, directly or indirectly, (i) solicit, initiate initiate, knowingly encourage or encourage (including by way of furnishing nonpublic information)knowingly facilitate, or take any other action to facilitatefurnish or disclose non-public information in furtherance of, any inquiries that would reasonably be expected to lead to, or the making of any proposal or offer (including, without limitationto implement, any proposal or offer to its stockholders) that constitutesCigna Alternative Transaction, or negotiate or otherwise engage in discussions with any Person (other than Anthem, Merger Sub, or their respective directors, officers, employees, agents and representatives) with respect to any Cigna Alternative Transaction, or approve, recommend or authorize any Cigna Alternative Transaction, or enter into any agreement, arrangement or understanding with respect to any Cigna Alternative Transaction or requiring it to abandon, terminate or fail to consummate the Mergers or any other transactions contemplated by this Agreement; provided that, at any time prior to receipt of the Required Cigna Vote (and in no event after receipt of the Required Cigna Vote), Cigna may furnish information to, and negotiate or otherwise engage in discussions with, any party who delivers a bona fide written proposal for a Cigna Alternative Transaction that was not solicited after the date of this Agreement, if and so long as the Board of Directors of Cigna determines in good faith after consultation with its outside legal counsel that providing such information or engaging in such negotiations or discussions is reasonably likely to be required in order for the directors to comply with their fiduciary duties under Delaware law and determines in good faith that such a proposal is, or would reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Cigna Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Cigna Corp), Merger Agreement (Anthem, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any that, from the date hereof until the earlier of the directorsEffective Time or the date of termination of this Agreement, officers or employees of it or any Subsidiary willshall not, and that it will shall cause its Subsidiaries and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant Representatives retained by it or any Subsidiary) of its Subsidiaries not to, directly or indirectly, (i) solicit, initiate initiate, knowingly encourage or encourage (including by way of furnishing nonpublic information)knowingly facilitate, or take any other action to facilitatefurnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that which constitutes, or may reasonably be expected to lead to, any Competing proposal or offer with respect to any Alternative Transaction, or negotiate or engage in discussions with any Person (iiother than Purchaser, Merger Sub or their respective Representatives) enter into with respect to any Alternative Transaction; provided that, Company and its Representatives may contact any Person making such proposal and its Representatives to ascertain facts or maintain clarify terms and conditions for the sole purpose of the Board of Directors of Company informing itself about such proposal and the Person that made it, and at any time prior to the adoption of this Agreement by Company’s stockholders (and in no event after the adoption of this Agreement by Company’s stockholders), Company may furnish information to, and negotiate or continue engage in discussions with, any party who delivers a bona fide written proposal for an Alternative Transaction which was made and not solicited, initiated, knowingly encouraged or knowingly facilitated by Company or its Representatives after the date hereof, if and so long as the Board of Directors of Company reasonably determines in good faith after consultation with its outside counsel that the failure to provide such information or engage in such negotiations or discussions is reasonably likely to be inconsistent with its fiduciary duties to the stockholders of Company under applicable Law and reasonably determines in good faith that such proposal is, or is reasonably likely to lead to a Superior Proposal. Company shall notify Purchaser promptly (but in any event within 48 hours) of any such inquiries, proposals or offers received by, or any such discussions or negotiations with sought to be initiated or continued with, Company or any Person in furtherance of its Subsidiaries or any of its or its Subsidiaries’ Representatives, indicating the name of such inquiries Person and providing to Purchaser a summary of the material terms of such proposal or offer for an Alternative Transaction. Prior to obtain providing any information or data to, or entering into any negotiations or discussions with, any Person, or making any such recommendation, in connection with a proposal or offer for a Competing an Alternative Transaction, Company shall receive from such Person an executed confidentiality agreement containing terms and provisions at least as restrictive to Company than those contained in the Confidentiality Agreement (iii) agree toit being understood, approve however, that such confidentiality agreement need not contain any obligation precluding discussions or endorse any Competing Transaction or enter into any letter of intent or other Contract negotiations relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendmentsfrom such Person and shall not contain any provision that requires exclusive negotiations with such Person). The Company shallagrees that it will keep Purchaser informed, on a prompt basis, of the status and shall direct material terms of any such proposals or cause its offers and its Subsidiaries’ directorsthe status of any material developments in respect of any such discussions or negotiations and that it will deliver to Purchaser a summary of any material changes to any such proposals or offers and all nonpublic information being furnished to such Person that was not previously provided to Purchaser. On the date hereof, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by Company agrees that it or any Subsidiary) to, will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person that may have been Third Parties conducted heretofore prior to the date hereof with respect to a Competing any Alternative Transaction. The Notwithstanding anything to the contrary contained herein, Company shall not release any Person frombe permitted to terminate, amend, modify, waive or waive fail to enforce any provision of, of any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information toof Directors of Company determines in good faith, 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 has (i) determined, in its good faith judgment (after consultation with its financial advisor)outside legal counsel, that the failure to take such proposal or offer constitutes or action is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply inconsistent with its fiduciary obligations duties to the stockholders of Company and its stockholders under applicable LawLaw and if Company terminates, (iii) provided written notice similarly amends, waives, fails to CIG and enforce or similarly modifies the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement and any related agreements shall not include any standstill provision calling for any exclusive right to negotiate with such party or having in the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which it is a party)Confidentiality Agreement.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Wellpoint, Inc), Merger Agreement (Amerigroup Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIII, the Seller and the Seller Subsidiaries will not, nor any Subsidiary nor will they authorize or permit any of the their respective officers, directors, officers Affiliates or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant other advisor or representative retained by it or any Subsidiary) not of them to, directly or indirectly, :
(i) solicit, initiate initiate, encourage or encourage induce the making, submission or announcement of any Acquisition Proposal;
(including by way of furnishing nonpublic information)ii) participate in any discussions or negotiations regarding, or furnish to any Person any material non-public information with respect to, or take any other action to facilitate, facilitate any inquiries inquiry or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, constitutes or may reasonably be expected to lead to, any Competing Transaction, Acquisition Proposal; or
(iiiii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction Acquisition Transaction; provided, however, this Section 4.3(a) shall not prohibit the Seller or the Seller’s Board of Directors from:
(ivA) authorize or permit any of the officers, directors or employees of furnishing material nonpublic information (other than information regarding the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained the Merger Sub supplied to the Seller by the Company or the Merger Sub) regarding the Seller or the Seller Subsidiaries to, or entering into a customary confidentiality agreement with or entering or re-entering into discussions with, any Person in response to an Acquisition Proposal submitted by such Person (and not withdrawn) if (x) the Seller’s Board of Directors reasonably determines in good faith, after taking into consideration the advice of and consultation with an investment banking firm of national reputation (which includes the Seller’s current financial advisor), that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Offer, and (y) the Seller’s Board of Directors concludes in good faith, after consultation with its outside legal counsel, that failure to take such action is reasonably likely to result in a breach by the Seller’s Board of Directors of its fiduciary obligations to the Seller’s stockholders under applicable Laws, provided that in any such case neither the Seller nor any representative of the Seller and the Seller Subsidiaries shall have violated any of its Subsidiariesthe restrictions set forth in this Section 4.3(a), to take or
(B) taking the actions described in the proviso of subsection (c), below, as permitted thereby, provided that none of the Seller, the Seller Subsidiaries or any such action. The Company shall notify CIG representatives of the Seller and the NBCU Entities as promptly as practicable Seller Subsidiaries shall have violated any of the restrictions set forth in this Section 4.3(a). At least ten (and in 10) days prior to furnishing any event within one material nonpublic information to, or entering into discussions or negotiations with, any Person, the Seller shall:
(1i) Business Day after give the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and written notice of the identity of such Person and of the party making such proposal or offer or inquiry or contact (including Seller’s intention to furnish material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) nonpublic information to, immediately cease and cause to be terminated any or enter into discussions or negotiations with any with, such Person; and
(ii) receive from such Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore an executed a confidentiality agreement in connection with its consideration containing customary limitations on the use and disclosure of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential written and oral nonpublic information heretofore furnished to such Person by or on behalf of the Seller, and contemporaneously with furnishing any such information to such Person, the Seller shall furnish such information to the Company (to the extent such information has not been previously furnished by the Seller to the Company). Nothing in this Section 4.3(a) shall prevent the Seller or the Seller’s Board of Directors from complying with Rules 14e-2 and 14d-9 promulgated under the Exchange Act with regard to an Acquisition Proposal. The Seller and the Seller Subsidiaries will immediately cease, and will cause each of their officers, directors, employees, Affiliates, investment bankers, attorneys and other advisors or representatives to immediately cease, as of the date hereof, any and all existing activities, discussions or negotiations with any other Persons conducted heretofore with respect to any Acquisition Proposal, subject to the right to renew such activities, discussions or negotiations in accordance with this Section 4.3. Without limiting the generality of the foregoing, it is understood that any violation of the restrictions set forth in this Section 4.3 by any officer, director, employee or Affiliate of the Seller or any Subsidiaryof the Seller Subsidiaries or any investment banker, attorney or other advisor or representative retained by any of them shall be deemed to be a breach of this Section 4.3 by the Seller.
(b) Notwithstanding anything In addition to the contrary obligations of the Seller set forth in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable4.3(a), the Board may furnish Seller as promptly as practicable shall advise the Company orally and in writing of any request received by the Seller, any Seller Subsidiary or any of their officers, directors, employees, Affiliates, investment bankers, attorneys and other advisors or representatives after the date hereof for information which the Seller reasonably believes would lead to an Acquisition Proposal or of any Acquisition Proposal, or any inquiry received by the Seller, any Seller Subsidiary or any of their officers, directors, employees, Affiliates, investment bankers, attorneys and other advisors or representatives after the date hereof with respect to, or which the Seller reasonably believes would lead to, any Acquisition Proposal, the material terms and enter into discussions withconditions of such request, a Person who has made an unsolicited, written, bona fide proposal Acquisition Proposal or offer regarding a Competing Transactioninquiry, and the Board has (i) determinedidentity of the Person making any such request, in its good faith judgment (after consultation with its financial advisor), that such proposal Acquisition Proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to inquiry. The Seller will keep the Company informed in all material respects of the status and its stockholders under applicable Lawdetails (including material amendments or proposed amendments) of any such request, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information Acquisition Proposal or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)inquiry.
(c) Except as otherwise provided herein below: (i) the Seller’s Board of Directors shall recommend that the Seller’s stockholders vote in favor of and to adopt and approve this Agreement, Agreement and the Merger at the Seller Stockholders’ Meeting; (ii) the Proxy Statement shall include a statement of the Seller’s Board of Directors Recommendation; and (iii) neither the Seller’s Board of Directors nor any committee thereof shall withdraw withhold, withdraw, amend or modify, or propose or resolve to withdraw withhold, withdraw, amend or modify, in a manner adverse to CIG the Company (in either event, a “Change of Recommendation”), the Seller’s Board of Directors Recommendation; provided, however, that nothing in this Agreement shall prevent the Seller’s Board of Directors from (i) withholding, withdrawing, amending or modifying the Seller’s Board of Directors Recommendation or (ii) not including in the Proxy Statement the Seller’s Board of Directors Recommendation if, in either case, the Seller’s Board of Directors reasonably determines in good faith, after consultation with its outside legal counsel, that, due primarily to facts or circumstances coming to the attention of the Seller’s Board of Directors after the date of this Agreement, the failure to take such action is reasonably likely to result in a breach by the Seller’s Board of Directors of its fiduciary obligations to Seller’s stockholders under applicable Law; and provided further, however, that neither the Seller nor the Seller’s Board of Directors may take any of the actions described in clauses (i) and (ii) of the immediately preceding proviso unless the Seller shall have received an Acquisition Proposal that has not been withdrawn as of the time of such action of the Seller’s Board of Directors and the NBCU EntitiesSeller’s Board of Directors shall have reasonably determined in good faith, after taking into consideration the approval advice of and consultation with an investment banking firm of national reputation (which includes the Seller’s current financial advisor), that such Acquisition Proposal constitutes or recommendation by the Board or any such committee of the Transaction Agreements is reasonably likely to which the Company is result in a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing TransactionSuperior Offer.
(d) The parties acknowledge and agree Notwithstanding anything to the contrary contained in this Section 4.3, in the event that nothing contained herein shall affect the Seller’s Board of Directors determines in good faith, after consultation with outside counsel, that in light of a Superior Offer it is necessary to do so in order to comply with its fiduciary duties to the Seller or the Seller’s stockholders under applicable Law, the Seller’s Board of Directors may terminate this Agreement in any way interfere the manner contemplated by Section 8.1(h) solely in order to concurrently enter into a definitive agreement with respect to a Superior Offer, but only after the tenth (10th) day following the Company’s Obligation receipt of written notice advising the Company that the Seller’s Board of Directors is prepared to comply accept a Superior Offer, and only if, during such ten (10) day period, if the Company so elects, the Seller and its advisors shall have negotiated in good faith with Rule 14d-9 under the Exchange ActCompany to make such adjustments in the terms and conditions of this Agreement as would enable the Seller to proceed with the transactions contemplated herein on such adjusted terms.
Appears in 2 contracts
Samples: Merger Agreement (First Indiana Corp), Merger Agreement (Marshall & Ilsley Corp/Wi/)
No Solicitation of Transactions. (a) The Company agrees that neither it nor shall immediately cease any Subsidiary nor existing discussions or negotiations, if any, with any of the directors, officers or employees of it or parties conducted heretofore with respect to any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives Takeover Proposal (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) as defined below). The Company shall not to, directly or indirectly, and it shall use its reasonable best efforts to cause its officers, directors, employees, representatives, agents or affiliates, including any investment bankers, attorneys or accountants (collectively, "Representatives") retained by the Company or any of its Subsidiaries or affiliates not to, (i) solicit, initiate initiate, encourage or encourage otherwise facilitate (including by way of furnishing nonpublic information), or take any other action to facilitate, ) any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) proposals that constitutesconstitute, or may could reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transactionmerger, (iii) agree torecapitalization, approve or endorse any Competing Transaction or enter into any letter consolidation, business combination, sale of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any a substantial portion of the officersassets of the Company and its Subsidiaries, directors taken as a whole, sale of 15% or employees more of the shares of capital stock (including by way of a tender offer, share exchange or exchange offer) or similar or comparable transactions involving the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as a "Takeover Proposal"), or (ii) engage in negotiations or discussions concerning, or provide any investment bankernon-public information to any person or entity relating to, financial advisorany Takeover Proposal. Notwithstanding anything in this Agreement to the contrary, attorneythe Board of Directors of the Company may, accountant or other representative retained at any time prior to adoption of this Agreement by the Company or any stockholders of its Subsidiariesthe Company, furnish information (pursuant to a customary confidentiality agreement no more favorable, in the aggregate, to take the party receiving information than the Confidentiality Agreement (it being understood that the Company may enter into a confidentiality agreement without a standstill or with a standstill provision less favorable to the Company if it waives or similarly modifies the standstill provision in the Confidentiality Agreement; provided that in no circumstances shall any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and standstill provision in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person such further confidentiality agreement be more favorable with respect thereto, regarding a Competing Transaction is made, specifying to the material terms and conditions thereof and the identity purchase of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendmentsshares of Company Common Stock). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any or engage in discussions or negotiations with, any person in response to an unsolicited bona fide written Takeover Proposal of such person, if, and only to the extent that, (A) the Board of Directors of the Company, after consultation with any Person its financial advisors and outside legal counsel to the Company, determines in good faith that may have been conducted heretofore with respect such Takeover Proposal could reasonably be expected to constitute a Competing Transaction. The Company shall not release any Person fromSuperior Proposal (as defined herein) and (B) prior to furnishing such information to, or waive any provision ofentering into discussions or negotiations with, any confidentiality or standstill agreement such person, the Company provides written notice to which Newco to the effect that it is a party furnishing information 36 to, or entering into discussions or negotiations with, such person and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection complies with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any SubsidiarySection 6.5(c).
(b) Notwithstanding anything in this Agreement to the contrary contrary, in this Section 10.05, prior response to the Exchange Offer Closing or the Exchange Offer Expiration, as applicablean unsolicited Takeover Proposal, the Company's 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 Board has of Directors shall be permitted (i) determinedto withdraw, in its good faith judgment (after consultation with its financial advisor), that such proposal modify or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modifychange, or propose to withdraw withdraw, modify or modify, in a manner adverse to CIG and the NBCU Entitieschange, the approval or recommendation by the Board of Directors of this Agreement, the Merger or any such committee of the Transaction Agreements other transactions contemplated by this Agreement; or (ii) to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause propose to approve or permit recommend, any Takeover Proposal, but only if, in each case referred to in clauses (i) and (ii), the Board of Directors of the Company concludes in good faith that such Takeover Proposal, if consummated, would constitute a Superior Proposal. "Superior Proposal" means any written Takeover Proposal which the Board of Directors of the Company determines in good faith (after consultation with its financial advisors and legal counsel) taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, (i) would, if consummated, result in a transaction that is more favorable to enter into any letter the Company's stockholders (in their capacity as stockholders), from a financial point of intentview, agreement than the transactions contemplated by this Agreement and (ii) is reasonably capable of being completed (provided that for purposes of this definition the term Takeover Proposal shall have the meaning assigned to such term in Section 6.5(b), except that (x) the reference to "15%" in the definition of Takeover Proposal shall be deemed to be a reference to "50%", (y) "Takeover Proposal" shall only be deemed to refer to a transaction involving the Company, or obligation with respect to, to assets (including the shares of any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with Subsidiary of the Company’s Obligation ) of the Company and its Subsidiaries, taken as a whole, and not any of its Subsidiaries alone and (z) no such sale of assets shall be deemed to comply with Rule 14d-9 under be "substantial" unless such sale is for at least 75% of the Exchange Actassets of the Company and its Subsidiaries, taken as a whole.
Appears in 2 contracts
Samples: Merger Agreement (Blount Winton M), Agreement and Plan of Merger and Recapitalization (Blount International Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willshall, and that it will shall cause the Company Subsidiaries and use reasonable best efforts to cause its and its Subsidiaries’ agentstheir officers, directors, employees, affiliates, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take immediately cease any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person parties that may be ongoing with respect to a Takeover Proposal, seek to have returned to the Company (or destroyed) any confidential information that has been provided in furtherance any such discussions or negotiations and (ii) take such action as is reasonably necessary to enforce any standstill or similar agreement to which it is a party or of which it is a beneficiary, unless in the case of subsection (ii) the Company Board reasonably determines based on the advice of outside counsel that taking such inquiries or action would reasonably be expected to obtain a proposal or offer for a Competing Transactioncause the Company Board to breach its fiduciary duties under applicable Law. From the date hereof, (iii) agree the Company shall not, nor shall it permit any Company Subsidiary to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) nor shall it authorize or permit any of the its officers, directors directors, employees or employees of the Company or any of affiliates, and shall use its Subsidiaries, or reasonable best efforts not to permit any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Company Subsidiary to, immediately cease and cause to be terminated any discussions directly or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person fromindirectly, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determinedsolicit, in its good faith judgment initiate or knowingly encourage (after consultation with its financial advisorincluding by way of furnishing information), that such or knowingly take any other action designed to facilitate, any inquiries or the making of any proposal which constitutes, or offer constitutes or is may reasonably likely be expected to constitute a Superior lead to, any Takeover Proposal, (ii) determinedparticipate in any discussions or negotiations regarding any Takeover Proposal, or (iii) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; provided, however, notwithstanding anything contained herein to the contrary, that if, at any time prior to receipt of the Stockholder Approval, following the receipt of a Takeover Proposal that is or is reasonably expected to lead to a Superior Proposal that in its either case was unsolicited and made after the date hereof in circumstances not involving a breach of this Section 6.04, the Company Board determines in good faith judgment faith, after consultation with outside legal counsel (who may counsel, that a failure to do so would reasonably be expected to cause the Company’s regularly engaged outside legal counselCompany Board to breach its fiduciary duties under applicable Law, the Company may, in response to such Takeover Proposal, subject to compliance with Section 6.04(c), thatand, in light the case of clauses (B) and (C) that follow, upon three business days advance notice to Parent, (A) request information from the party making such Superior ProposalTakeover Proposal for the purpose of the Company Board informing itself about the Takeover Proposal that has been made and the party that made it, the furnishing of such (B) furnish non-public information or entering into discussions is required to comply with its fiduciary obligations respect to the Company and its stockholders under applicable Lawthe Company Subsidiaries to the party making such Takeover Proposal pursuant to a customary confidentiality agreement, provided, that (iii1) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement and any related agreements shall may not include any provision calling for any an exclusive right to negotiate with such party the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement and (2) the Transaction Agreements Company shall promptly (but in no event later than 24 hours after providing such information to which it is a any person) provide to Parent all such nonpublic information delivered to such person (to the extent not previously provided or made available to Parent) after its delivery to the requesting party), and (C) participate in discussions and negotiations with such party regarding such Takeover Proposal.
(cb) Except as otherwise provided permitted in this AgreementSection 6.04(b), neither the Company Board nor any committee thereof shall (i) withhold or withdraw (or modify, modify or propose to withdraw or modify, qualify in a manner adverse to CIG and the NBCU EntitiesParent), or propose publicly to withhold or withdraw (or modify or qualify in a manner adverse to Parent), the approval Company Recommendation, (ii) approve or recommendation by recommend for approval, or propose publicly to approve or recommend for approval, any Takeover Proposal, (iii) fail to recommend against acceptance of any tender offer or exchange offer for the Board Company Common Stock within 10 business days after the commencement of such offer, (iv) make any public statement inconsistent with the Company Recommendation, or (v) resolve to take any such committee of the Transaction Agreements to which the Company is a party and the Transactionforegoing actions (any of (i) through (v), including the Tender Offer and the Reverse Stock Splitan “Adverse Recommendation Change”), or approve or recommend, or (vi) cause or permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement or obligation other similar agreement (each, an “Acquisition Agreement”) related to any Takeover Proposal (other than a customary confidentiality agreement referred to in clause (B) of the proviso to Section 6.04(a)). Notwithstanding the foregoing, in the event that the Company Board determines in good faith, in response to a Takeover Proposal (that was not solicited in breach of Section 6.04(a)) that constitutes a Superior Proposal, which was made after the date hereof, but prior to the receipt of the Stockholder Approval, in circumstances not involving a breach of this Agreement, after consultation with respect outside counsel, that the failure to do so would reasonably be expected to cause the Company Board to breach its fiduciary duties under applicable Law, the Company Board may (subject to compliance with this sentence and to compliance with Section 6.04(a) and Section 6.04(c)) take any or all of the following actions: (x) make an Adverse Recommendation Change, (y) cause the Company to enter into an Acquisition Agreement and approve such transaction or the acquirer being an “interested stockholder” under Section 203 of the DGCL, or (z) postpone or adjourn the Stockholders’ Meeting; provided that (1) any actions described in clause (x), (y) or (z) may be taken only at a time that is after the third business day following Parent’s receipt of written notice from the Company (such period of time, the “Notice Period”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and including the most current version of the proposed agreement (which version shall be updated on a prompt basis), identifying the person making such Superior Proposal and providing notice of the determination of the Company Board of what actions described in clause (x), (y) or (z) the Company Board has determined to take; (2) the action described in clause (y) may be taken only upon compliance by the Company with Section 8.01(d)(ii) and Section 8.03; (3) the Company shall, and shall cause the Company Subsidiaries to, and shall use its reasonable best efforts to cause its and their officers, directors, employees, affiliates, advisors and representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after the commencement of the Notice Period, there is any Competing Transactionmaterial revision to the terms of a Superior Proposal, including any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two business days remain in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions of the Notice Period)); and (4) the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Takeover Proposal continues to constitute a Superior Proposal taking into account, among other things, the payment of the Termination Fee and any adjustments made by Parent during the Notice Period to the terms and conditions of this Agreement. In addition, and notwithstanding anything in this Agreement to the contrary, the Company Board may also make an Adverse Recommendation Change as contemplated by clause (i) of the definition of “Adverse Recommendation Change,” if it determines in good faith that a failure to do so would reasonably be expected to be a breach of its fiduciary duties under applicable Law, provided that the Company has given Parent three business days’ prior written notice of its intention to take such action, specifying in reasonable detail the reasons for such action.
(c) In addition to the obligations of the Company set forth in Section 6.04(a) and Section 6.04(b), the Company shall promptly (but in no event later than 24 hours after receipt) advise Parent orally (and in writing as promptly as reasonably practicable) of any initial request for confidential information in connection with a Takeover Proposal or of any Takeover Proposal, the material terms and conditions of such request or the Takeover Proposal and shall keep Parent advised as promptly as reasonably practicable of all material developments which could reasonably be expected to culminate in the Company Board making an Adverse Recommendation Change or exercising any of its other rights under Section 6.04(a) or (b). The Company agrees that it will not enter into any confidentiality agreement with any person subsequent to the date hereof that prohibits the Company from providing any information to Parent in accordance with this Section 6.04(c).
(d) The parties acknowledge Nothing contained in this Section 6.04 or Section 6.10 shall prohibit the Company from taking and agree disclosing to its stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or, if the Company Board determines in good faith, after consultation with outside legal counsel, that nothing contained herein shall affect failure to disclose such position or in communication could constitute a violation of applicable Law, from making any way interfere with other disclosure to the Company’s Obligation to comply stockholders; provided, however, that neither the Company nor the Company Board nor any committee thereof shall make an Adverse Recommendation Change, except in accordance with Section 6.04(b) and further provided that in no event shall any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9 14d-1(f) under the Exchange ActAct be deemed to be an Adverse Recommendation Change or violate Section 6.04.
(e) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Enstar Group LTD), Merger Agreement (SeaBright Holdings, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary shall, nor any shall it authorize or permit the Representatives of the directors, officers Company or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not the Subsidiaries to, directly or indirectly, (i) solicit, solicit or initiate or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing nonpublic information), or take any other action to facilitate, ) any inquiries or the making implementation or submission of any proposal Acquisition Proposal, or offer (includingii) participate in discussions or negotiations regarding, without limitationor furnish to any person any non-public information in connection with, any proposal Acquisition Proposal; provided, however, that, prior to the adoption of this Agreement by the Company's stockholders at the Company Stockholders' Meeting, nothing contained in this Agreement shall prevent the Company or offer the Company Board from furnishing information to, or engaging in negotiations or discussions with, any person in connection with an unsolicited bona fide written Acquisition Proposal by such person, if and only to the extent that prior to taking such action (A) the Company Board believes in good faith (after consultation with its stockholdersadvisors) that constitutessuch Acquisition Proposal is, or may could reasonably be expected to lead toresult in, a Superior Proposal, and the Company Board determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, and (B) the Company Board receives from such person an executed confidentiality agreement, the terms of which are substantially similar to and no less favorable to the Company than those contained in the Confidentiality Agreement. Except as set forth in this Section 6.03, neither the Company nor any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or Subsidiary shall enter into any letter of intent intent, acquisition agreement or similar agreement with respect to an Acquisition Proposal (other Contract relating than a confidentiality agreement referred to any Competing Transaction or in this Section 6.03(a)).
(ivb) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities Parent as promptly as practicable (and in any event within one (148 hours) Business Day after of the receipt by the Company attains knowledge thereof), orally and in writing, if or any proposal or offerof the Subsidiaries, or any inquiry of its or contact with their respective Representatives, of any Person with respect theretobona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding a Competing Transaction is madeany Acquisition Proposal, specifying the material terms and conditions thereof and the identity of the party making such proposal proposal. The Company shall keep Parent reasonably informed of the status of any such discussions or offer negotiations and of any modifications to such inquiries, proposals or inquiry offers (the Company agreeing that it shall not, and shall cause the Subsidiaries not to, enter into any confidentiality agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing such information to Parent). The Company agrees that neither it nor any Subsidiary shall terminate, waive, amend or contact (including material amendments modify any provision of any existing standstill or proposed material amendments)confidentiality agreement to which it or any of the Subsidiaries is a party and that it and the Subsidiaries shall enforce the provisions of any such agreement. The Company shall, and shall direct or cause the Subsidiaries and its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) their Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Person parties that may have been conducted heretofore be ongoing with respect to a Competing Transaction. The Company any Acquisition Proposal as of the date hereof, shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement take reasonable steps to which it is a party inform its and the Company also agrees to promptly Subsidiaries' Representatives of the obligations undertaken in this Section 6.03 and shall request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore previously furnished to any such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may third parties be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)returned promptly.
(c) Except as otherwise provided set forth in this AgreementSection 6.03, neither the Company Board nor (or any committee thereof thereof) shall withdraw or modifynot, or and shall not publicly propose to to, (i) withdraw or modify, in a manner adverse to CIG and the NBCU EntitiesParent or Merger Sub, the approval or recommendation of this Agreement, the Merger or the other Transactions by the Company Board (or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or thereof); (ii) approve or recommend, recommend any Acquisition Proposal; or cause or permit the Company to enter into (iii) approve any letter of intent, acquisition agreement or obligation similar agreement with respect toto any Acquisition Proposal (other than a confidentiality agreement referred to in this Section 6.03). Notwithstanding the foregoing, any Competing Transactionprior to the adoption of this Agreement by the Company's stockholders at the Company Stockholders' Meeting, (x) in response to the receipt of an unsolicited bona fide written Acquisition Proposal, if the Company Board (A) determines in good faith (after consultation with its advisors) that such Acquisition Proposal is a Superior Proposal and (B) determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw or modify the Company Board Recommendation or (y) other than in connection with an Acquisition Proposal, if the Company Board determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, then the Company Board may withdraw or modify the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a "Change in Board Recommendation").
(d) The parties acknowledge Nothing contained in this Agreement shall prohibit the Company from taking and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation disclosing to comply with Rule its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange ActAct or from making any disclosure to the Company's stockholders if the Company Board (or any committee thereof) determines in good faith (after consultation with its outside legal counsel) that it is required to do so under applicable Law; provided, however, that neither the Company nor the Company Board (nor any committee thereof) shall (i) recommend that the stockholders of the Company tender their Shares in connection with any such tender or exchange offer (or otherwise approve or recommend any Acquisition Proposal) or (ii) withdraw or modify the Company Board Recommendation, unless in the case of each of clause (d)(i) and (d)(ii) hereof, the requirements of Section 6.03(c) shall have been satisfied.
(e) Except as set forth in Section 8.03(d) with respect to an Acquisition Proposal, for purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Boca Resorts Inc), Merger Agreement (Huizenga H Wayne)
No Solicitation of Transactions. (a) The Company agrees Until the earlier of the Closing and termination of this Agreement pursuant to Article VIII, the Sellers agree that neither it nor any Subsidiary nor they shall not, and shall cause the Company, any of the directors, officers or employees of it or any Subsidiary will, its Subsidiaries and that it will cause its and its Subsidiaries’ agents, advisors and other representatives their respective Representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any SubsidiaryGroup Company) not to, in each case, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information)knowingly encourage, enter into, maintain or continue discussions or negotiations with any Third Party in respect of, or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including, without limitation, including any proposal or offer to its stockholdersshareholders) that constitutes, or may that in the Sellers’ good faith judgment could reasonably be expected to lead to, any Competing Transactionpurchase, merger or acquisition of the Company’s or any Group Company’s Equity Securities, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve approve, endorse, recommend or endorse consummate any Competing Transaction purchase, merger or acquisition of the Company’s or any Group Company’s Equity Securities or enter into any letter of intent or other Contract or commitment contemplating or otherwise relating to any Competing Transaction purchase, merger or acquisition of the Company’s or any Group Company’s Equity Securities, (iii) grant any waiver, amendment or release under any standstill, confidentiality or similar agreement or Takeover Statute (and the Sellers shall promptly take all action necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), (iv) engage in any act or inaction that will materially impair or is reasonably expected to materially impair the value of the Group Companies, (v) unilaterally terminate or withdraw from this Agreement and the Transactions, or seek such termination or withdrawal other than pursuant to Section 8.03, or (ivvi) authorize or permit any of the officersRepresentatives of the Sellers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, Subsidiaries to take any such actionaction set forth in clauses (i) – (v) of this Section 6.02. The Company Sellers shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shallnot, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable LawSubsidiaries not to, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed any confidentiality agreement (it being understood that such confidentiality agreement and with any related agreements shall not include any provision calling for any exclusive right Third Party subsequent to negotiate with such party or having the effect date of prohibiting this Agreement which prohibits the Company from satisfying its obligations under providing such information to the Transaction Agreements to which it is a party)Purchaser.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Share Purchase Agreement (Renren Inc.), Share Purchase Agreement (Kaixin Auto Holdings)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directorswill not, officers directly or employees of it or any Subsidiary willindirectly, and that it will cause its subsidiaries and affiliates, and its Subsidiaries’ agentsand their respective officers, advisors directors, employees, investment bankers, attorneys, accountants and other advisers or representatives (includingcollectively, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiarythe "Representatives") not to, directly or indirectly, (i) solicit, initiate or encourage (including by way means of furnishing nonpublic non-public information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) or enter into or maintain or continue discussions or negotiations negotiate with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) or agree to, approve to or endorse any Competing Transaction Transaction, or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company its subsidiaries or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative Representative retained by the Company or any of its Subsidiaries, it to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05foregoing, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determinedthe Company may, in response to an unsolicited bona fide written offer or proposal with respect to a proposed Superior Proposal, pursuant to a confidentiality agreement containing customary terms and conditions, furnish confidential or non-public information to a financially capable Person (a "Potential Acquirer") and negotiate with such Potential Acquirer if the Board of Directors of the Company, after consulting with its outside legal counsel, determines in good faith judgment (after consultation that the failure to provide such confidential or non-public information to or negotiate with its financial advisor), that such proposal or offer constitutes or is Potential Acquirer would be reasonably likely to constitute a Superior Proposalbreach of its fiduciary duty to the Company's stockholders, and (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light 's Board of Directors may recommend to the Company's stockholders that they accept such Superior Proposal, the furnishing of such information Proposal or entering into discussions is required to comply with its fiduciary obligations otherwise take and disclose to the Company Company's stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and its stockholders under applicable Law, (iiiagreed that negotiations and other activities conducted in accordance with this Section 6.5(b) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 constitute a violation of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which it is a partySection 6.5(a).
(c) Except as otherwise provided The Company shall promptly, but in this Agreementany event within one day after receiving notice thereof, neither advise the Board nor Investors in writing of any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board Competing Transaction or any such committee inquiry regarding the making of the Transaction Agreements to which the Company is a party and the Competing Transaction, including any request for information, the Tender Offer material terms and conditions of such request, Competing Transaction or inquiry and the Reverse Stock Splitidentity of the Person making such request, Competing Transaction or approve inquiry. The Company shall keep the Investors reasonably informed of the status and details, including any amendments or recommendproposed amendments, of any such request, Competing Transaction or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactioninquiry.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Subscription Agreement (Sutherland Yoest David), Subscription Agreement (Sanders Don A)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of shall, and shall cause the Company Subsidiaries, and its and their respective officers, directors, officers employees, agents or employees of it advisors or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any financial advisor or investment banker, attorney legal counsel or accountant retained by it it) (“Representatives”) to, immediately cease and cause to be terminated any discussions or any Subsidiary) negotiations with third parties with respect to an Acquisition Proposal (as defined below). The Company will not, directly or indirectly, and will instruct its Representatives not to, directly or indirectly, (i) solicit, initiate or or, except as and only to the extent permitted by Section 6.03(b), encourage (including by way of furnishing nonpublic non-public information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing TransactionAcquisition Proposal, (ii) or, except as and only to the extent permitted by Section 6.03(b), enter into or maintain or continue discussions or negotiations negotiate with any Person in furtherance of such inquiries or to obtain a proposal an Acquisition Proposal, or offer for a Competing Transaction, (iii) agree to, approve to or recommend or endorse any Competing Transaction Acquisition Proposal, or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees Representative of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, Subsidiaries to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by mergerparty, acquisition of stock or assets or otherwise) the Company or including any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any SubsidiarySupport Agreement.
(b) Notwithstanding anything to the contrary in this Section 10.056.03, at any time prior to the Exchange Offer Closing or Arrangement having been approved by the Exchange Offer Expiration, as applicableCompany Shareholders, the Company Board may furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, unsolicited bona fide written proposal or offer regarding an Acquisition Proposal (that did not result from a Competing Transactionbreach of this Section 6.03), and the Board has with respect to which (i) the Company Board has determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is could reasonably likely be expected to constitute result in a Superior ProposalProposal (as defined below), (ii) the Company Board has determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of failure to furnish such information or entering to enter into such discussions is required to comply with would result in a breach of its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) the Company has satisfied its obligations under Section 6.03(c), (iv) the Company Board has provided written notice to CIG and the NBCU Entities Purchaser Parties of its intent to furnish information or enter into discussions with such Person at least three Business Days prior to taking any such action, and (ivv) the Company Board has obtained from such Person an executed confidentiality agreement (it being understood that such containing confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right provisions no less favourable to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under than those contained in the Transaction Agreements to which it is a party)Confidentiality Agreement.
(c) Except as otherwise provided The Company agrees that in addition to the obligations of the Company set forth in paragraphs (a) and (b) of this AgreementSection 6.03, neither immediately upon receipt thereof, the Board nor Company shall advise the Parent in writing of any committee thereof shall withdraw request for information or modifyany Acquisition Proposal, or propose any inquiry, discussions or negotiations with respect to withdraw or modify, in a manner adverse to CIG any Acquisition Proposal and the NBCU Entitiesterms and conditions of such request for information, Acquisition Proposal, inquiry, discussions or negotiations and the approval or recommendation Company shall promptly provide to the Parent copies of any written materials received by the Board Company in connection with any of the foregoing, and the identity of the Person or group making any such committee request for information, Acquisition Proposal or inquiry or with whom any discussions or negotiations may be taking place. The Company agrees that it shall keep the Purchaser informed of the Transaction Agreements status, terms and material details (including amendments or proposed amendments) of any such request for information, Acquisition Proposal or inquiry and keep the Purchaser informed as to which the details of any information requested of or provided by the Company is a party and as to the Transactionstatus and material terms of all substantive discussions or negotiations with respect to any such request, including Acquisition Proposal or inquiry. The Company agrees that it shall simultaneously provide to the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit Purchaser any non-public information concerning the Company that may be provided to enter into any letter of intent, agreement other Person or obligation group in connection with respect to, any Competing TransactionAcquisition Proposal which was not previously provided to the Purchaser.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Arrangement Agreement (Acorn Energy, Inc.), Arrangement Agreement (Acorn Energy, Inc.)
No Solicitation of Transactions. (a) The Until the earlier of the Effective Time and termination of this Agreement pursuant to Article VIII, except as set forth in Section 6.04(b), the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willits Subsidiaries, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives Representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any Subsidiary) Group Company), not to, in each case, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic informationinformation concerning any Group Company), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including, without limitation, including any proposal or offer to its stockholdersshareholders) that constitutes, or may that in the Company’s good faith judgment could reasonably be expected to lead to, any Competing Transaction, (ii) enter into or into, maintain or continue discussions or negotiations with with, or provide any Person nonpublic information concerning any Group Company to, any Third Party in furtherance of such inquiries or to obtain a such proposal or offer for a Competing Transaction, (iii) agree to, approve approve, endorse, recommend or endorse consummate any Competing Transaction or enter into any letter of intent or Contract (other Contract than an Acceptable Confidentiality Agreement) or commitment contemplating or otherwise relating to any Competing Transaction Transaction, (iv) grant any waiver, amendment or release under any standstill, confidentiality or similar agreement or Takeover Statutes (and the Company shall promptly take all action necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement) or (ivv) authorize or permit any of the officers, directors or employees Representatives of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, Subsidiaries to take any such actionaction set forth in clauses (i) – (iv) of this Section 6.04(a). The Company shall notify CIG and the NBCU Entities Parent as promptly as practicable (and in any event within one (1) Business Day 48 hours after the Company attains has knowledge thereof), orally and in writing, if of any proposal or offer, or any inquiry or contact with any Person with respect theretoperson, regarding a Competing Transaction is madeor that in the Company’s good faith judgment could reasonably be expected to lead to a Competing Transaction, specifying (x) the material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements and (y) the identity of the party making such proposal or offer or inquiry or contact. The Company shall keep Parent informed, on a reasonably current basis (and in any event within 48 hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material amendments terms and conditions thereof). Without limiting the foregoing, the Company shall provide Parent with 48 hours prior notice (or proposed material amendments)such lesser prior notice as is provided to the members of the Company Board or members of the Special Committee) of any meeting of the Company Board or Special Committee at which the Company Board or Special Committee, as applicable, is reasonably expected to consider any Competing Transaction. The Company shall, and shall direct or cause its Subsidiaries and the Representatives of the Company and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Subsidiaries to, immediately cease and cause to be terminated any terminate all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transaction. The Company shall not, and shall cause its Subsidiaries not release any Person fromto, or waive any provision of, enter into any confidentiality or standstill agreement with any Third Party subsequent to which it is a party and the date hereof that prohibits the Company also agrees from providing such information to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any SubsidiaryParent.
(b) Notwithstanding anything to the contrary in this Section 10.056.04(a), at any time prior to the Exchange Offer Closing or receipt of the Exchange Offer ExpirationRequisite Company Vote, as applicable, following the Board may furnish information to, and enter into discussions with, a Person who has made receipt of an unsolicited, written, bona fide proposal or offer regarding a Competing TransactionTransaction that was not obtained in violation of this Section 6.04 (other than any immaterial non-compliance that does not adversely affect Parent or Merger Sub), the Company and its Representatives may, with respect to such proposal or offer and acting only upon the Board has recommendation of the Special Committee:
(i) contact the person who has made such proposal or offer to clarify and understand the terms and conditions thereof to the extent the Special Committee shall have determined in good faith that such contact is necessary to determine whether such proposal or offer constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal;
(ii) provide information in response to the request of the person who has made such proposal or offer, if and only if, prior to providing such information, the Company has received from the person so requesting such information an executed Acceptable Confidentiality Agreement; provided that the Company shall concurrently make available to Parent any information concerning the Company and the Subsidiaries that is provided to any such person and that was not previously made available to Parent or its Representatives; and
(iii) engage or participate in any discussions or negotiations with the person who has made such proposal or offer; provided that prior to taking any actions described in clause (ii) or (iii), the Company Board (acting only upon recommendation of the Special Committee) or the Special Committee has (A) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that such proposal or offer constitutes or could reasonably be expected to result in a Superior Proposal, (B) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that, in light of such Superior Proposal, failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (C) provided written notice to Parent at least 48 hours prior to taking any such action.
(c) Except as set forth in Section 6.04(d) or Section 6.04(e), neither the Company Board nor any committee thereof shall (i) (A) change, withhold, withdraw, qualify or modify (or publicly propose to change, withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation, (B) fail to include the Company Recommendation in the Proxy Statement, (C) adopt, approve or recommend, or publicly propose to adopt, approve or recommend to the shareholders of the Company, a Competing Transaction, (D) if a tender offer or exchange offer that constitutes a Competing Transaction is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company shareholders (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer; provided that a customary “stop, look and listen” communication by the Company Board pursuant to Rule 14d–9(f) of the Exchange Act or a statement that the Company Board has received and is currently evaluating such Competing Transaction shall not be prohibited or be deemed to be a Change in the Company Recommendation) within 10 Business Days after the commencement thereof, (E) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within 10 Business Days after the commencement thereof or (F) fail to publicly reaffirm the Company Recommendation following any Competing Transaction having been publicly made, proposed or communicated (and not publicly withdrawn) within 10 Business Days after Parent so requests in writing; provided that Parent may not make such request more than one time with respect to any given Competing Transaction unless there shall have been an additional public announcement with respect to such Competing Transaction (any of the foregoing, a “Change in the Company Recommendation”) or (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other or similar document or Contract with respect to any Competing Transaction other than an Acceptable Confidentiality Agreement entered into in compliance with Section 6.04(b) (an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary set forth in this Agreement, from the date hereof and at any time prior to the receipt of the Requisite Company Vote, if the Company has received a bona fide written proposal or offer with respect to a Competing Transaction that was not obtained in violation of Section 6.04 (other than any immaterial non-compliance that does not adversely affect Parent or Merger Sub) and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines in its good faith judgment (after consultation with its financial advisoradvisor and outside legal counsel), that such proposal or offer constitutes a Superior Proposal and failure to make a Change in the Company Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law, the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is reasonably likely within the authority of the Special Committee) may effect a Change in the Company Recommendation with respect to such Superior Proposal and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c), but only (i) if the Company shall have complied with the requirements of Section 6.04(a) and Section 6.04(b) with respect to such proposal or offer, (ii) after (A) providing at least five Business Days’ (the “Superior Proposal Notice Period”) 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 of such Superior Proposal (and providing any proposed agreements related thereto), identifying the person making such Superior Proposal and indicating that the Company Board or the Special Committee (to the extent it is within the authority of the Special Committee), as applicable, intends to effect a Change in the Company Recommendation and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c); it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company Recommendation, and (B) negotiating with and causing its financial and legal advisors to negotiate with Parent, Merger Sub and their respective Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and the Financing, so that such Third-Party proposal or offer would cease to constitute a Superior Proposal; provided that any material modifications to such Third-Party proposal or offer that the Company Board or the Special Committee has determined to be a Superior Proposal shall be deemed a new Superior Proposal to which the requirements of this Section 6.04(d) shall apply; provided, further, that with respect to such new Superior Proposal, the Superior Proposal Notice Period shall be deemed to be a three Business Day period rather than the five Business Day period first described above and (iiiii) determinedfollowing the end of such five Business Day period or three Business Day period (as applicable), the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee shall have determined in its good faith judgment after consultation with its financial advisor and outside legal counsel that taking into account any changes to this Agreement and the Financing proposed by Parent and Merger Sub in response to the Notice of Superior Proposal or otherwise, that the proposal or offer with respect to the Competing Transaction giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal.
(who may be e) Notwithstanding anything to the Company’s regularly engaged contrary set forth in this Agreement, from the date hereof and at any time prior to the receipt of the Requisite Company Vote, if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines in its good faith judgment (after receiving written advice of outside legal counselcounsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that, in light of ) that the failure to take such Superior Proposal, the furnishing of such information or entering into discussions is required action would reasonably be expected to comply with breach its fiduciary obligations to the Company and its stockholders duties under applicable Law, the Company Board (iiiacting only upon the recommendation of the Special Committee) or the Special Committee may effect a Change in the Company Recommendation; provided that the Company Board or the Special Committee, as applicable, shall not make such Change in the Company Recommendation unless the Company has (i) provided to Parent at least five Business Days’ prior written notice that it intends to CIG take such action and specifying in reasonable detail the NBCU Entities facts underlying the decision by the Company Board (acting only upon the recommendation of its intent the Special Committee) or the Special Committee, as applicable, to furnish information or enter into discussions with take such Person action and (ivii) obtained from during such Person an executed confidentiality agreement (it being understood five Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to amend this Agreement in such a manner that obviates the need for 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 Change in the Company from satisfying its obligations under the Transaction Agreements to which it is a party)Recommendation.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Shi Yuzhu), Merger Agreement (Baring Asia Private Equity Fund v Co-Investment L.P.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Notwithstanding anything to the contrary contained in this Agreement but subject to Section 7.3(e), during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on July 10, 2017 (the directors"Go Shop Period End Time"), officers or employees of it or any Subsidiary willREIT I, the REIT I Subsidiaries and that it will cause its their respective Representatives may and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not shall have the right to, directly or indirectly, : (i) initiate, solicit, initiate encourage or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, facilitate any inquiries or the making of any proposal proposal, offer or offer (including, without limitation, any proposal or offer to its stockholders) other action that constitutes, or may reasonably be expected to lead to, any Competing TransactionAcquisition Proposal, including by way of (A) contacting third parties, (B) broadly disseminating public disclosure or (C) providing access to the properties, offices, assets, books, records and personnel of REIT I and the REIT I Subsidiaries and furnishing non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided, however, that REIT I has previously furnished, made available or provided access to such non-public information to REIT II or promptly makes available to REIT II any such non-public information if such information was not previously made available to REIT II; (ii) enter into into, continue or maintain or continue discussions or negotiations with any Person otherwise participate in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect relating to, or in furtherance of such inquiries, proposals, offers or other actions or to a Competing Transaction. The Company shall not obtain, an Acquisition Proposal; (iii) release any Person from, or waive any provision ofrefrain from enforcing, any confidentiality or standstill agreement or similar obligation to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company REIT I or any Subsidiaryof the REIT I Subsidiaries; and (iv) disclose to the stockholders of REIT I any information required to be disclosed under applicable Law; provided, if anyhowever, that in the case of this clause (iv), to return (the extent any such disclosure addresses the approval, recommendation or if permitted declaration of advisability by the applicable confidentiality agreementREIT I Board with respect to this Agreement or an Acquisition Proposal, destroysuch disclosure shall be deemed to be an Adverse Recommendation Change (as defined in Section 7.3(b) all confidential information heretofore furnished to such Person below) if not accompanied by or on behalf an express public re-affirmation of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in REIT I Board Recommendation. For purposes of this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicableAgreement, the Board may furnish information to, term "Go Shop Bidder" shall mean any Person (including its controlled Affiliates and enter into discussions with, Representatives) that submits a Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transactionan Acquisition Proposal not later than the Go Shop Period End Time that has not been withdrawn and that the REIT I Special Committee determines prior to the Go Shop Period End Time (or in the case of any Acquisition Proposal received less than five (5) Business Days before the date of the Go Shop Period End Time, and not later than five (5) Business Days after the Board has (i) determined, in its good faith judgment (after consultation with its financial advisorGo Shop Period End Time), that such proposal has resulted in, or offer constitutes or is would be reasonably likely expected to constitute result in, a Superior ProposalProposal (as defined below) (such Person, (ii) determineda "Go Shop Bidder"); provided, in its good faith judgment after consultation that a Go Shop Bidder shall cease to be a Go Shop Bidder if the negotiations between REIT I and such Go Shop Bidder with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations respect to the Company Acquisition Proposal that resulted in such Go Shop Bidder becoming a Go Shop Bidder shall have been terminated. No later than two (2) Business Days after the Go Shop Period End Time, REIT I shall notify REIT II in writing of the identity of each Go Shop Bidder and its stockholders under applicable Lawprovide to REIT II (x) a copy of any related Acquisition Proposal made in writing and any other written material terms or proposals provided (including, (iii) provided written notice to CIG and the NBCU Entities extent not included therein, a copy of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality the acquisition agreement and any related agreements shall transaction documents and financing commitments, if any) to REIT I or any REIT I Subsidiary and (y) a written summary of the material terms of any related Acquisition Proposal not include made in writing (including any provision calling for any exclusive right to negotiate with such party material terms proposed orally or having the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which it is a partysupplementally).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (MVP REIT, Inc.), Merger Agreement (MVP REIT II, Inc.)
No Solicitation of Transactions. (a) The Company Each Shareholder, severally and not jointly, agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not to, directly or indirectly, through any officer, director, representative, agent or otherwise, (ia) initiate, solicit, initiate facilitate or encourage (including by way of furnishing nonpublic non-public information), directly or take any other action to facilitateindirectly, whether publicly or otherwise, any inquiries inquiries, offers or proposals with respect to, or the making of, any alternative corporate transaction in lieu of the Transactions (“Alternative Transaction”) (or that would reasonably be expected to encourage or lead to an Alternative Transaction), (b) engage in any negotiations or discussions concerning, or provide access to or furnish non-public information regarding, a Company’s or any Company Subsidiary’s properties, assets, personnel, books or records or any Confidential Information or data to, any person relating to an Alternative Transaction (or that would reasonably be expected encourage or lead to an Alternative Transaction), (c) enter into, engage in or maintain discussions or negotiations with respect to any Alternative Transaction (or inquiries, proposals or offers or other communications that would reasonably be expected to encourage or lead to any Alternative Transaction) or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, efforts, discussions or negotiations, (d) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Transaction, (e) approve, endorse, recommend, execute or enter into any agreement, arrangement or understanding, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, business combination agreement, transaction agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Alternative Transaction or any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may could reasonably be expected to lead to, any Competing to an Alternative Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (ivf) resolve or agree to do any of the foregoing actions or otherwise authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, representatives to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company Each Shareholder shall, and shall direct or instruct and cause its representatives and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) agents to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person that may have been conducted heretofore with respect parties (other than the parties to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party the Merger Agreement and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement their respective representatives) in connection with its consideration of acquiring a Company Acquisition Proposal (whether other than the Transactions) and each Shareholder acknowledges that any action taken by merger, acquisition of stock or assets or otherwise) the Company it or any Subsidiary, if any, to return (or if permitted by representative of it inconsistent with the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary restrictions set forth in this Section 10.053, prior whether or not such representative is purporting to act on the Exchange Offer Closing or the Exchange Offer Expirationsuch Shareholder’s behalf, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely shall be deemed to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be breach of this Section 3 by such Shareholder. Notwithstanding the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposalforgoing, the furnishing provisions of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement and any related agreements this Section 3 shall not include any provision calling for any exclusive right to negotiate with such party or having limit the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee rights of the Transaction Agreements to which Pubco Board under Section 7.6(b) of the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing TransactionMerger Agreement.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Voting and Support Agreement (Enterprise Diversified, Inc.), Voting and Support Agreement (Enterprise Diversified, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Subject to Sections 7.04(b), 7.04(c), 7.04(d) and 7.04(e), none of the directors, officers or employees of it Company or any Subsidiary willshall, and that it will cause its and its Subsidiaries’ nor shall any of them authorize or permit, directly or indirectly, any of their respective officers, trustees, directors, employees, investment bankers, financial advisors, accountants, attorneys, brokers, finders or other agents, advisors and other or representatives (includingeach, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiarya “Representative”) not to, directly or indirectly, (i) initiate, solicit, initiate knowingly encourage or encourage knowingly take any other action to facilitate (including by way of furnishing nonpublic informationinformation (other than public information widely disseminated through SEC Reports, press releases or other similar means), or take any other action to facilitate, ) any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) other action that constitutes, or may would reasonably be expected to lead to, any Competing TransactionAcquisition Proposal, (ii) enter into initiate or maintain or continue participate in any discussions or negotiations with negotiations, or furnish to any Person not a party to this Agreement any information in furtherance of such any inquiries or that would reasonably be expected to obtain a proposal or offer for a Competing Transactionlead to an Acquisition Proposal, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent agreement, arrangement or other Contract relating understanding with respect to any Competing Transaction Acquisition Proposal (other than a confidentiality agreement referred to in or permitted by Section 7.04(c)), or (iv) authorize fail to make, withdraw or permit modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Offer Recommendation or Merger Recommendation (it being understood that, subject to Section 7.04(e), publicly announcing that the Company is taking a neutral position or no position with respect to any Acquisition Proposal shall be considered an adverse modification), recommend, adopt or approve, or publicly propose to recommend, adopt or approve, an Acquisition Proposal (any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and foregoing in any event within one (1) Business Day after the Company attains knowledge thereofthis clause (iv), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments“Company Adverse Recommendation Change”). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, Subsidiaries to immediately cease and cause to be terminated terminated, and shall take and cause its Subsidiaries to take, all actions reasonably necessary to cause their respective Representatives to cease, immediately any discussions discussions, negotiations or negotiations communications with any Person party or parties that may have been conducted heretofore are currently ongoing with respect to, or that could reasonably be expected to a Competing Transactionlead to, an Acquisition Proposal; provided, however, that nothing in this Section 7.04 shall preclude the Company, any Subsidiary or their respective Representatives from complying with the provisions of the last sentence of this Section 7.04(a). The Company and the Subsidiaries shall be responsible for any failure on the part of their respective Representatives to comply with this Section 7.04(a) or Section 7.04(b). The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement on or after January 1, 2007 in connection with its consideration of acquiring a potential transaction with (whether by merger, acquisition of acquisition, stock or assets sale, asset sale or otherwise) the Company or any Subsidiary, if anyor any material portion of their assets, to return (or if permitted by the applicable confidentiality agreement, destroy) destroy all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything The Company shall promptly notify Parent in writing (as soon as is reasonably practicable, but in any event no later than 24 hours from initial receipt or occurrence) of any Acquisition Proposal or any negotiations with respect to any Acquisition Proposal (including the identity of the parties and all material terms thereof) which any of the Company or any Subsidiary or any such Representative may receive after the date hereof and shall keep Parent reasonably informed on a prompt basis as to the contrary status, material terms and conditions and any material developments regarding any such proposal. The Company shall not, and shall cause any Subsidiary not to, terminate, release, waive, amend or modify any provision of any existing standstill agreement, confidentiality agreement or other similar agreement with respect to any class of equity securities of the Company or any Subsidiary to which the Company or any Subsidiary is a party and the Company shall, and shall cause each Subsidiary to, enforce the provisions of any such agreement; provided, however, that the Company shall be permitted in its sole discretion to terminate, release, waive, amend or modify any provision of any standstill agreement, confidentiality agreement or other similar agreement entered into by the Company prior to December 31, 2006.
(c) Notwithstanding Section 7.04(a) and Section 7.04(b) or any other provision of this Agreement to the contrary, following the receipt after the date hereof, at any time prior to the Acceptance Date (and in no event after the Acceptance Date), by the Company or any Subsidiary of a bona fide written Acquisition Proposal (that was not solicited, encouraged or facilitated in violation of Section 7.04(a) or Section 7.04(b)), the Company Board may (directly or through Representatives) contact such Person and its advisors for the purpose of clarifying the Acquisition Proposal, the material terms thereof and/or the conditions to and its likelihood of consummation. If the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such Acquisition Proposal constitutes or may be reasonably likely to lead to a Superior Proposal, the Company Board may, (i) furnish non-public information with respect to the Company and its Subsidiaries to the Person who made such Acquisition Proposal (provided that the Company (1) has previously or concurrently furnished such information to Parent and (2) shall furnish such information pursuant to a confidentiality agreement which contains confidentiality terms and conditions not less restrictive to the Person than the Confidentiality Agreement), (ii) disclose to its stockholders any information required to be disclosed under applicable Law and (iii) participate in discussions and negotiations regarding such Acquisition Proposal.
(d) Neither the Company Board nor any Committee thereof shall make a Company Adverse Recommendation Change except in accordance with the provisions of this Agreement. Notwithstanding the foregoing, at any time prior to the Acceptance Date (and in no event after the Acceptance Date), the Company Board may make a Company Adverse Recommendation Change if the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that the failure to take such action would be inconsistent with the duties of the Company’s directors under applicable Law; provided, however, that (A) no Company Adverse Recommendation Change shall be made until after the third (3rd) Business Day following Parent’s receipt of written notice from the Company (i) advising Parent that the Company Board intends to take such action, (ii) if in response to a Superior Proposal, advising Parent of the material terms and conditions of any Superior Proposal that is the basis of the proposed action by the Company Board (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new written notice be provided to Parent and a new three (3) Business Day period), and (iii) representing that the Company has complied with this Section 10.057.04(d) in all material respects, (B) during such three (3) Business Day period, the Company, if requested by Parent, shall negotiate with Parent in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Merger and not make a Company Adverse Recommendation Change and (C) the Company shall not make a Company Adverse Recommendation Change in response to a Superior Proposal if, prior to the Exchange Offer Closing or expiration of such three (3) Business Day period, Parent delivers an irrevocable, legally binding definitive agreement to adjust the Exchange Offer Expiration, as applicable, terms and conditions of this Agreement that 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 Board has (i) determined, determines in its good faith judgment (after consultation with its financial advisor)advisors) causes the Acquisition Proposal to no longer be a Superior Proposal.
(e) Nothing in this Section 7.04 or elsewhere in this Agreement shall prevent the Company Board from (1) taking, disclosing and announcing to its securityholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect to an Acquisition Proposal, provided, however, that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to action shall not relieve the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is provisions of this Section 7.04; (2) issuing a party).
“stop, look and listen” announcement, (c3) Except as otherwise provided in this Agreement, neither the Board nor complying with its obligations under U.S. federal or state law regarding any committee thereof shall withdraw or modifyAcquisition Proposal, or propose (4) taking, refraining from taking, disclosing or announcing any action (or intent to withdraw take any action) permitted by this Agreement or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or that any such committee court of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit competent jurisdiction orders the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactiontake.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Centro Properties LTD), Merger Agreement (New Plan Excel Realty Trust Inc)
No Solicitation of Transactions. The Company, its affiliates and their respective officers, directors, employees, representatives and agents (ai) The shall immediately cease any existing discussions or negotiations, if any, with any parties with respect to any acquisition (other 37 than the transactions contemplated by this Agreement) of all or any material portion of the assets of, or any equity interest in, the Company agrees that neither it nor any Subsidiary nor or any of the directors, officers or employees of it Company Subsidiaries or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it business combination with the Company or any Subsidiaryof the Company Subsidiaries, (ii) not toshall not, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information)initiate, encourage, or take any other action furnish information in response to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) proposals that constitutesconstitute, or may could reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing an Acquisition Transaction, (iii) shall not engage in negotiations or discussions concerning, or provide any non-public information to any person or entity relating to, any Acquisition Transaction, or (iv) shall not agree to, approve or endorse recommend any Competing Transaction Acquisition Transaction; except, with respect to clauses (ii) (as to the furnishing of information only), (iii) and (iv), where any such person or enter into any letter entity has submitted a written proposal to the Company's Board of intent or other Contract Directors relating to any Competing an Acquisition Transaction or (iv) authorize or permit any and the Company's Board of Directors has received the written opinion of Irell & Manexxx XXX to the effect that the failure of the officers, directors or employees Company's Board of Directors to so act would constitute a violation of the Board of Directors' fiduciary responsibilities to the holders of the Company Common Stock under applicable law (it being understood that for this purpose, the failure to respond to an Acquisition Proposal which in the judgment of the Company's Board of Directors and BZW is superior, from a financial point of view, to the Company's stockholders may be deemed to be a breach of such fiduciary duty). If the Company shall nevertheless receive any indications of interest or proposals with respect to any Acquisition Transactions, it shall provide a copy of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained such written proposal to Purchaser immediately after receipt thereof by the Company or any of its Subsidiariesrepresentatives or agents, to take shall notify Parent immediately if any such action. The proposal (whether oral or written) is made and shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors of the Company shall notify CIG withdrawing, modifying or amending its recommendation of the Offer, the Merger and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after other transactions contemplated by this Agreement. Except with Parent's consent, the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause agrees not to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person third party from, or waive any provision provisions of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactionparty.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (National Education Corp), Merger Agreement (Nick Acquisition Corp)
No Solicitation of Transactions. (a) The (i) Except as set forth in this Section 7.5, until the earlier of the Control Date or the termination of this Agreement in accordance with the terms hereof, the Company agrees that neither it and the Company Subsidiaries shall not, nor any Subsidiary nor shall they authorize or knowingly permit any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not their respective Representatives to, directly or indirectly, indirectly (iA) solicit, initiate initiate, knowingly encourage or encourage (including by way of furnishing nonpublic information), or take knowingly facilitate any other action to facilitate, any inquiries Acquisition Proposal or the making of any proposal or offer (including, without limitation, any proposal or offer thereof to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiariesshareholders; (B) enter into, continue or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and otherwise participate in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations regarding, or furnish any non-public information to, or otherwise cooperate in any way with, any person (other than Parent, Purchaser and their Representatives) with respect to any Person Acquisition Proposal; (C) waive, terminate, modify or fail to enforce any provision of any contractual “standstill,” confidentiality or similar obligation of any person other than Parent or its affiliates; or (D) take any action to render any provision of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or any restrictive provision of any applicable anti-takeover provision in the Company’s organizational documents, in each case inapplicable to any person (other than Parent, Purchaser or any of their affiliates) or any Acquisition Proposal (and to the extent permitted thereunder, the Company shall promptly take all steps necessary to terminate any waiver that may have been conducted heretofore with respect granted to a Competing Transactionany such person or Acquisition Proposal under any such provisions). The Company shall not release Any breach of the foregoing provisions of this Section 7.5 by any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company Subsidiaries or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice Subsidiaries’ Representatives shall be deemed to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is be a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation breach by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing TransactionCompany.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Actel Corp), Merger Agreement (Microsemi Corp)
No Solicitation of Transactions. (a) The Each of the Company and Parent agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willits Subsidiaries shall, and that it will shall use its reasonable best efforts to cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) ' Representatives not to, directly or indirectly, : (i) solicit, initiate initiate, encourage, knowingly facilitate or encourage induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal, (including by way of furnishing ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information)information with respect to, or take any other action to facilitate, facilitate any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, constitutes or may reasonably be expected to lead to, any Competing Transaction, Acquisition Proposal (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or except to obtain a proposal or offer for a Competing Transactionthe extent specifically permitted pursuant to this Section 6.4), (iii) agree toengage in discussions with any person with respect to any Acquisition Proposal, approve except to notify such person as to the existence of these provisions (except to the extent specifically permitted pursuant to this Section 6.4), (iv) approve, endorse or endorse recommend any Competing Transaction Acquisition Proposal with respect to it (except to the extent specifically permitted pursuant to this Section 6.4), or (v) enter into any letter of intent or other Contract similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Competing Transaction Acquisition Proposal or a transaction contemplated thereby (ivexcept for confidentiality agreements specifically permitted pursuant to Section 6.4(c)). Except as permitted by Section 6.4(c) authorize or permit any of the officershereof and subject to compliance with its terms, directors or employees each of the Company and Parent shall immediately terminate, and shall cause its Subsidiaries and its and its Subsidiaries' Representatives to immediately terminate, all discussions or negotiations, if any, with any third party with respect to, or any that could reasonably be expected to lead to or contemplate the possibility of, an Acquisition Proposal. Each of the Company and Parent shall immediately demand that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries, Affiliates or Subsidiaries or any investment bankerof its or its Affiliates' or Subsidiaries' Representatives with respect to such person's consideration of a possible Acquisition Proposal to immediately return or destroy (which destruction shall be certified in writing by such person to such party hereunder) all confidential information heretofore furnished by such party or any of its Affiliates or Subsidiaries or any of its or its Affiliates' or Subsidiaries' Representatives to such person or any of such person's Affiliates or Subsidiaries or any of such person's or such person's Affiliates' or Subsidiaries' Representatives.
(b) Promptly, financial advisorbut in any event within twenty-four (24) hours, attorney, accountant or other representative retained after receipt of any Acquisition Proposal by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offerParent, or any request for nonpublic information or inquiry or contact which it reasonably believes could lead to an Acquisition Proposal, such party shall provide the other party with any Person with respect thereto, regarding a Competing Transaction is made, specifying written notice of the material terms and conditions thereof of such Acquisition Proposal, request or inquiry, and the identity of the party person or group making any such proposal Acquisition Proposal, request or offer inquiry, and a copy of all written materials provided in connection with such Acquisition Proposal, request or inquiry. After receipt of the Acquisition Proposal, request or inquiry by the Company or contact Parent, it shall promptly keep the other party hereunder informed in all material respects of the status and details (including material amendments or proposed material amendments). The Company shall) of any such Acquisition Proposal, request or inquiry and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by promptly provide to it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement copy of all written materials subsequently provided in connection with its consideration of acquiring such Acquisition Proposal, request or inquiry.
(whether by mergerc) If, acquisition of stock or assets or otherwise) prior to the Company or any Subsidiary, if any, to return (or if permitted by Stockholders Meeting in the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf case of the Company or Parent Stockholders Meeting in the case of Parent, either the Company or Parent receives an Acquisition Proposal (for purposes of the procedures set forth in this Section 6.4(c), any SubsidiaryAcquisition Proposal received prior to the date hereof and which is still outstanding as of the date hereof shall be deemed to have been received immediately after execution and delivery hereof) which (i) constitutes a Superior Proposal or (ii) which its Board of Directors in good faith concludes proposes consideration that is more favorable to its stockholders than the transactions contemplated by this Agreement and which could reasonably be expected to result in a Superior Proposal in all other respects, it shall promptly, but in any event in less than 3 days, provide to the other party hereunder written notice that shall state expressly (A) that it has received an Acquisition Proposal which constitutes a Superior Proposal or which could reasonably be expected to result in a Superior Proposal, and (B) the identity of the party making such Acquisition Proposal and the material terms and conditions of the Acquisition Proposal (the "Superior Proposal Notice") and may then take the following actions:
(1) furnish nonpublic information to the third party making such Acquisition Proposal, provided, that (x) prior to so furnishing, the furnishing party receives from the third party an executed confidentiality agreement containing terms no more favorable to the third party than the terms under the Confidentiality Agreement and customary standstill provisions, and (y) contemporaneously with furnishing any such nonpublic information to such third party, the furnishing party furnishes a copy of such nonpublic information to the other party hereunder (to the extent such nonpublic information has not been previously so furnished); and
(2) engage in negotiations with the third party with respect to the Acquisition Proposal.
(bd) Notwithstanding anything For a period of not less than five Business Days after receipt by a party from the other party of each Superior Proposal Notice, the other party shall, if requested by the receiving party, negotiate in good faith with the receiving party to revise this Agreement so that the Acquisition Proposal that constituted a Superior Proposal no longer constitutes a Superior Proposal.
(e) In response to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information to, receipt of a Superior Proposal that has not been withdrawn 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 has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely continues to constitute a Superior ProposalProposal after compliance by the party receiving the Superior Proposal with Section 6.4(d), the Board of Directors of such party may withhold or withdraw the Company Recommendation or the Parent Recommendation, as the case may be, and, in the case of a Superior Proposal that is a tender or exchange offer made directly to its stockholders, may recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors or a committee thereof, a "Change of Recommendation"), if both of the following conditions in Sections 6.4(e)(i) and 6.4(e)(ii) are met:
(i) the Company Stockholders' Meeting or the Parent Stockholders' Meeting, as the case may be, has not occurred; and
(ii) determinedthe Board of Directors of such party has concluded in good faith, in its good faith judgment after following consultation with outside legal counsel (who may be the Company’s regularly engaged its outside legal counsel), that, in light of such Superior Proposal, the furnishing failure of such information or entering into discussions is required the Board of Directors to comply with effect a Change of Recommendation would result in a breach of its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(cf) Except Each of the Company and Parent agrees that it shall not submit to the vote of its stockholders any Acquisition Proposal (whether or not a Superior Proposal) or propose to do so. Nothing contained in this Agreement shall be deemed to restrict the Company or Parent from complying with Rules 14d-9 or 14e-2 under the Exchange Act or be deemed to restrict the Company or Parent from making such other disclosures as otherwise provided may be required by federal securities laws or applicable fiduciary duties.
(g) Notwithstanding anything to the contrary contained in this Agreement, neither the Board nor any committee thereof prohibitions contained in Sections 5.l(j), 5.1(l), 5.2(j) and 5.2(l) shall withdraw or modify, or propose not be applicable with respect to withdraw or modify, in a manner adverse Person who has submitted a Superior Proposal to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and or Parent, as the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactioncase may be.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Variagenics Inc), Merger Agreement (Hyseq Inc)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toshall, directly or indirectly, through any officer, director, agent or otherwise, (i) solicit, initiate or encourage the submission of, any Acquisition Proposal (including by way of furnishing nonpublic informationas defined below) or (ii) subject to Section 7.05(b), participate in any discussions or take negotiations regarding, or furnish to any other action to facilitateperson, any inquiries information with respect to, or the making of otherwise cooperate in any proposal way with respect to, or offer (includingassist or participate in, without limitationfacilitate or encourage, any unsolicited proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any SubsidiaryAcquisition Proposal.
(b) Notwithstanding anything to the contrary Except as set forth in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor7.05(b), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU EntitiesParent or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Transaction Agreements Offer, the Merger or any other Transaction, (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, in the event that, prior to the time of acceptance for payment of Shares pursuant to the Offer, the Board determines in good faith that it is required to do so by its fiduciary duties under applicable law after having received advice from outside legal counsel, the Board may withdraw or modify its approval or recommendation of the Offer and the Merger.
(c) The Company shall, and shall direct or cause its directors, officers, employees, representatives and agents to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may be ongoing with respect to any Acquisition Proposal.
(d) information with respect to any Acquisition Proposal, the material terms and conditions of such Acquisition Proposal or request and the identity of the person making such Acquisition Proposal or request and (ii) any changes in any such Acquisition Proposal or request.
(e) The Company agrees, except as required by the Board's fiduciary duties under applicable law after having received advice from outside legal counsel, not to release any third party from, or waive any provision of, any confidentiality or standstill agreement to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactionparty.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Ericsson MPD Acquisition Corp), Merger Agreement (Microwave Power Devices Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause each of its Subsidiaries to, and its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the their respective officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any existing solicitations, discussions or negotiations with any Person that may have been conducted heretofore with respect has made or indicated an intention to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiarymake an Acquisition Proposal.
(b) Notwithstanding anything The Company shall not, and shall cause its Subsidiaries and any of their respective directors, officers and representatives not to, (i) solicit, initiate, knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries with respect to the contrary an Acquisition Proposal, or (ii) initiate, participate in this Section 10.05or knowingly encourage any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the Exchange Offer Closing Company Stockholder Approval, if the Company receives a bona fide Acquisition Proposal or a proposal that may reasonably be expected to lead to an Acquisition Proposal that was not solicited after the Exchange Offer Expiration, as applicabledate of this Agreement or that did not otherwise result from a breach of this Section 6.04, the Board Company may furnish furnish, or cause to be furnished, non-public information to, with respect to the Company and enter into discussions with, a its Subsidiaries to the Person who has made an unsolicited, written, bona fide such proposal or offer and may participate in discussions and negotiations regarding a Competing Transaction, such proposal if (A) each of the Company Board and the Special Committee determines in good faith, after consultation with its financial advisor and outside counsel, that such action is necessary in order for such directors to comply with the directors’ statutory duties under Section 2-405.1 of the MGCL and fiduciary duties under the Company Charter, (B) each of the Company Board has (i) determinedand the Special Committee determines in good faith, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to constitute result in a Superior Proposal, and (C) prior to taking such action, the Company enters into a confidentiality agreement with respect to such proposal that contains confidentiality provisions no less restrictive than the Confidentiality Agreement. The Company shall promptly (and, in any event, within 24 hours) notify Parent after receipt by the Company of any Acquisition Proposal, including the material terms and conditions thereof, to the extent known, the identity of the third party making any proposal and any material change in the status of discussions or negotiations (including any material amendments to the proposal) between the Company and the Person making such proposal.
(c) Prior to the Effective Time the Company Board and the Special Committee shall not (i) withdraw, qualify or modify or publicly propose to withdraw, qualify or modify in a manner adverse to Parent or Purchaser, the Company Recommendation or (ii) determinedapprove, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal to holders of the Company Common Stock; provided, however, that in its the event an Acquisition Proposal is made prior to the Company Stockholder Approval, each of the Company Board and the Special Committee may take such action if the Company has complied with the notice provisions set forth in the last sentence of Section 6.04(b) and each has determined in good faith judgment (x) after consultation with outside legal counsel that such action is necessary in order for such directors to comply with the directors’ statutory duties under Section 2-405.1 of the MGCL and fiduciary duties under the Company Charter and (who y) after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal is a Superior Proposal. In the event that the Company Board and the Special Committee comply with their respective obligations in the preceding sentence, the Company may be enter into a definitive agreement to effect a Superior Proposal, but not prior to such time as the Company has provided Parent with written notice that the Company has elected to terminate this Agreement pursuant to Section 8.01(e) and otherwise complied with the Company’s regularly engaged outside legal counselobligations in the preceding sentence and in Section 8.01(e), that.
(d) Nothing contained in this Section 6.04 shall prohibit the Company from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A or from making any other disclosure to its stockholders or in any other regulatory filing if, in light the good faith judgment of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company Board and its stockholders the Special Committee, based on the advice of their respective outside counsel, failure to so disclose would be inconsistent with their or the Company’s obligations under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement Law (it being understood that such confidentiality agreement and any related agreements nothing in this Section 6.04(d) 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 affect Parent’s termination rights under the Transaction Agreements to which it is a partySection 8.01(f)).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Health Care Property Investors Inc), Merger Agreement (CNL Retirement Properties Inc)
No Solicitation of Transactions. (a) The Company agrees shall, and shall direct and use reasonable efforts to cause its officers, directors, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties that neither may be ongoing with respect to an Acquisition Proposal (as hereinafter defined). The Company shall not, nor shall it nor any Subsidiary nor permit any of the directorsits Subsidiaries to, officers nor shall it authorize or permit any of its officers, directors or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney financial advisor, attorney, accountant or accountant other representative retained by it or any Subsidiary) not of its Subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that which constitutes, or may reasonably be expected to lead to, any Competing Transaction, Acquisition Proposal or (ii) enter into or maintain or continue participate in any discussions or negotiations regarding any Acquisition Proposal; provided, however, that if, at any time prior to the consummation of the Offer, the Board determines in good faith, after receipt of advice from its outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to an Acquisition Proposal which was not solicited by or on behalf of the Company subsequent to the date hereof, and subject to compliance with Section 6.05(b) and (c), (x) furnish information with respect to the Company to any Person person pursuant to a customary confidentiality agreement (as determined by the Company after receipt of advice from its outside counsel) and (y) participate in furtherance of negotiations regarding such inquiries or to obtain a Acquisition Proposal. "Acquisition Proposal" means (i) any inquiry, proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse from any Competing Transaction or enter into any letter of intent or other Contract person relating to any Competing Transaction direct or (iv) authorize indirect acquisition or permit any purchase of 15% or more of the officers, directors assets of the Company and its Subsidiaries or employees 15% or more of any class of equity securities of the Company or any of its Subsidiaries, (ii) any tender offer or exchange offer that if consummated would result in any investment banker, financial advisor, attorney, accountant person beneficially owning 15% or other representative retained by more of any class of equity securities of the Company or any of its Subsidiaries, to take (iii) any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or assets or otherwise) similar transaction involving the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information Subsidiaries, other than the Transactions, or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood any other transaction that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right could reasonably be expected to negotiate with such party prevent or having materially delay the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee consummation of the Transaction Agreements to which Offer or the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing TransactionMerger.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Moneygram Payment Systems Inc), Agreement and Plan of Merger (Viad Corp)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toshall, directly or indirectly, through any officer, director, employee, representative, agent or otherwise, (i) solicit, initiate or take any action intended to encourage the submission of any Acquisition Proposal, or (including ii) except as required by the fiduciary duties of the Board under applicable Law (as determined in good faith) after having received advice from outside legal counsel in response to unsolicited proposals, participate in any discussions or negotiations regarding, or furnish to any person, any information (provided that prior to furnishing such information, the Company enters into a customary, confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement) with respect to, or otherwise cooperate in any way of furnishing nonpublic information)with respect to, or assist or participate in, or take any other action intended to facilitate, any inquiries facilitate or the making of any proposal or offer (including, without limitationencourage, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal.
(b) Except as set forth in this Section 7.05(b), neither the Board nor any Competing committee thereof shall (i) withhold, withdraw, amend, change or modify, or propose to withhold, withdraw, amend, change or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Offer, the Merger or any other Transaction, (ii) enter into approve or maintain recommend, or continue discussions propose to approve or negotiations with recommend, any Person in furtherance of such inquiries Acquisition Proposal or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating agreement with respect to any Competing Transaction Acquisition Proposal. Notwithstanding the foregoing, in the event that, prior to the time of acceptance for payment of Shares pursuant to the Offer, the Board determines in good faith that it is required to do so by its fiduciary duties under applicable law after having received advice from outside legal counsel and that the Acquisition Proposal constitutes, or (iv) authorize may reasonably be expected to lead to, a Superior Proposal, after giving prior written notice to Parent and Purchaser, the Board may withhold, withdraw, amend, change or permit any modify its approval or recommendation of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG Offer and the NBCU Entities as promptly as practicable Merger, but only to terminate this Agreement in accordance with Section 9.01(d)(ii).
(and in any event within one (1c) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agentsrepresentatives, advisors and agents or other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person parties that may have been conducted heretofore be ongoing with respect to a Competing Transaction. any Acquisition Proposal as of the date hereof.
(d) The Company shall promptly advise Parent orally (within one (1) Business Day) and in writing (within two (2) Business Days) of (i) any Acquisition Proposal or any request for information with respect to any Acquisition Proposal, the material terms and conditions of such Acquisition Proposal or request and the identity of the person making such Acquisition Proposal or request and (ii) any changes in any such Acquisition Proposal or request.
(e) Nothing contained in this Section 7.05 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders, if the Board determines in good faith that it is required to do so by its fiduciary duties under applicable law after having received advice from outside legal counsel; provided, however, that neither the Company nor the Board nor any committee thereof shall, except as permitted by Section 7.05(b), withhold, withdraw, amend, change or modify, or propose publicly to withhold, withdraw, amend, change or modify, its position with respect to this Agreement, the Offer, the Merger or any other Transaction or to approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal, including a Superior Proposal.
(f) The Company agrees, except as required by the Board's fiduciary duties under applicable law after having received advice from outside legal counsel, not to release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactionparty.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Thomson Corp), Merger Agreement (Thomson Corp)
No Solicitation of Transactions. (a) The Company agrees that neither will not, nor will it nor any Subsidiary nor permit any of its Subsidiaries to, nor will it authorize or permit any Representative of the directors, officers or employees of it Company or any Subsidiary will, and that it will cause of its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not Subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making submission of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing TransactionAcquisition Proposal, (ii) enter into engage in, continue or maintain or continue otherwise participate in any discussions or negotiations with regarding, or furnish to any Person in furtherance of such inquiries or any non-public information with respect to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or take any investment bankerother action to facilitate, financial advisorany Acquisition Proposal, attorney(iii) agree to, accountant approve, endorse or other representative recommend any Acquisition Proposal or enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal, (iv) authorize or permit any Representatives of the Company or any of its Subsidiaries retained by or acting directly or indirectly under the direction of the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and action set forth in the NBCU Entities as promptly as practicable preceding clauses (and in any event within one i) through (1iii) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal of this Section 6.4(a) or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiaryv) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party party. Immediately after the execution and delivery of this Agreement, the Company also agrees will, and will cause its Subsidiaries and Affiliates and their respective Representatives to, cease and terminate any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any possible Acquisition Proposal, shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock cause to be returned or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) destroyed all confidential information heretofore furnished to such Person provided by or on behalf of the Company or any Subsidiaryof its Subsidiaries to such Person, and shall notify each such Person and its Representatives that the Company Board no longer seeks or requests the making of any Acquisition Proposal, and withdraws any consent theretofore given to the making of an Acquisition Proposal.
(b) Notwithstanding anything in Section 6.4(a) to the contrary in this Section 10.05contrary, prior to the Exchange Offer Closing or time the Exchange Offer ExpirationShareholder Approval is obtained, as applicablebut not after, if the Board may furnish information to, and enter into discussions with, a Person who has made Company receives an unsolicited, written, unsolicited bona fide proposal or offer regarding written Acquisition Proposal from any Person that did not result from a Competing Transactionbreach by the Company of this Section 6.4 and that has not been withdrawn, and the Board has (i) the Company and its Representatives may contact such Person to clarify the terms and conditions thereof so as to determine whether such Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, and (ii) if the Company Board has determined, in its good faith judgment judgment, upon the recommendation of the Special Committee (after consultation with its an independent financial advisoradvisor of internationally recognized reputation and independent legal counsel), that such proposal or offer constitutes or is Acquisition Proposal would reasonably likely be expected to constitute result in a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to then the Company and its stockholders under applicable LawRepresentatives may (x) furnish information (including non-public information) with respect to the Company to the Person who has made such Acquisition Proposal and (y) engage in or otherwise participate in discussions or negotiations with the Person making such Acquisition Proposal; provided, that the Company shall (1) notify Parent of any Acquisition Proposal (including, without limitation, all material terms and conditions thereof and the identity of the Person making it) as promptly as practicable (but in no case later than 48 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on a reasonably current basis of the status of any inquiries, discussions or negotiations with such third party, and any material changes to the terms and conditions of such Acquisition Proposal, (iii2) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained obtain from such Person an executed confidentiality agreement Acceptable Confidentiality Agreement (it being understood that such confidentiality agreement an Acceptable Confidentiality Agreement and any related agreements shall not include any provision calling for any granting such Person exclusive right rights to negotiate with such party the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and (3) concurrently give Parent a copy of any information delivered to such Person that was not previously provided to Parent. The Company shall not, and shall cause its Subsidiaries not to, enter into any Contract with any Person subsequent to the Transaction Agreements date hereof that would restrict the Company’s ability to which it provide such information to Parent, and neither the Company nor any of its Subsidiaries is a party)currently party to any agreement that prohibits the Company from providing the information described in this Section 6.4(b) to Parent.
(c) Except as otherwise provided in expressly permitted by this AgreementSection 6.4, neither the Company Board nor any committee thereof shall (i) (A) fail to make a Company Board Recommendation or fail to include the Company Recommendation in the Proxy Statement, (B) withhold, withdraw (or not continue to make), qualify or modify, or propose to withhold, withdraw (or not continue to make), qualify or modify, in a manner adverse to CIG and the NBCU EntitiesParent or Merger Sub, the approval Company Board Recommendation, (C) adopt, approve or recommendation by recommend or propose to adopt, approve or recommend (publicly or otherwise) any Acquisition Proposal, (D) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Board or Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal, (E) publicly announce is intention to take any such committee of the Transaction Agreements actions described in foregoing clauses (A) through (D) (any of such actions described in clauses (A) through (E) being referred to which the Company is as a party and the Transaction, including the Tender Offer and the Reverse Stock Split“Change of Recommendation”), or approve or recommend(ii) authorize, or cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement, merger agreement or obligation other similar agreement relating to any Acquisition Proposal (other than any Acceptable Confidentiality Agreement entered into in accordance with respect toSection 6.4(b)) (each, an “Alternative Acquisition Agreement”). The Company acknowledges and agrees that the doing of any Competing Transactionof the foregoing by any of its Subsidiaries or Representatives shall be deemed to be a breach by the Company of this Section 6.4(c).
(d) The parties acknowledge Notwithstanding anything in this Section 6.4 to the contrary, prior to the time the Shareholder Approval is obtained, but not after, if the Company has received a written, bona fide proposal or offer with respect to an Acquisition Proposal that did not arise or result from a breach of Section 6.4(a), that is not withdrawn and agree that nothing the Company Board determines, upon the recommendation of the Special Committee (after having received the advice of an independent financial advisor of internationally recognized reputation and independent legal counsel), in its good faith judgment constitutes a Superior Proposal, the Company Board may, upon the recommendation of the Special Committee (after having received the advice of an independent financial advisor of internationally recognized reputation and independent legal counsel), (x) make a Change of Recommendation, and/or (y) authorize the Company to terminate this Agreement pursuant to Section 8.3(b) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, if the Company Board determines, upon the recommendation of the Special Committee (after having received the advice of an independent financial advisor of internationally recognized reputation and independent legal counsel), in its good faith judgment, that failure to take any such action would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law; provided, that the Company has (A) provided at least five (5) Business Days’ (the “Negotiation Period”) prior written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal (which notice shall include an unredacted copy of the Superior Proposal, an unredacted copy of the relevant proposed transaction agreements and a copy of any financing commitments relating thereto, if applicable) and indicating that the Company Board intends to take any such action, (B) during the Negotiation Period, the Company shall have negotiated with, and caused its Representatives to negotiate with, Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and/or the terms of the Financing Documents, so that such Acquisition Proposal would cease to constitute a Superior Proposal (any amendment to the terms of such Superior Proposal during the Negotiation Period shall require a new Notice of Superior Proposal of the terms of such amended Superior Proposal from the Company and an additional Negotiation Period that satisfies this Section 6.4(d), and (C) following the end of the Negotiation Period (or any additional Negotiation Period, if applicable), the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after consultation with an independent financial advisor of internationally recognized reputation and independent legal counsel), that the Acquisition Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and that failure to take any of the actions referenced in subsection (x) or (y) herein would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law.
(e) Notwithstanding anything in this Section 6.4 to the contrary, prior to the time the Shareholder Approval is obtained, but not after, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after consultation with an independent financial advisor of internationally recognized reputation and independent legal counsel), other than in response to or in connection with an Acquisition Proposal, that failure to make a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.3(c) would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, the Company Board may, upon the recommendation of the Special Committee (after consultation with an independent financial advisor of internationally recognized reputation and independent legal counsel), effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.3(c); provided, that (i) any such action is in response to an Intervening Event; (ii) the Company has (A) provided Parent at least five (5) Business Days’ prior written notice indicating that the Company Board intends to effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.3(c), which notice shall specify in detail the basis for such Change of Recommendation and/or termination and the manner in which it intends (or may intend) to do so, and (B) negotiated with, and caused its Representatives to negotiate with, Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and/or the terms of the Financing Documents in such a manner that would obviate the need for taking such action; and (iii) following the end of such five (5)-Business Day period, the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after consultation with an independent financial advisor of internationally recognized reputation and independent legal counsel), that such adjustments proposed by Parent pursuant the foregoing clause (B) would not obviate the need for a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.3(c) in response to such Intervening Event.
(f) Nothing contained herein in this Section 6.4 shall affect be deemed to prohibit the Company from complying with its disclosure obligations under federal or state Laws of the United States of America, or other applicable Laws, with regard to an Acquisition Proposal; provided, that making such disclosure shall not in any way interfere with limit or modify the effect, if any, that any such action has under this Section 6.4; provided, further, that if such disclosure includes a Change of Recommendation or has the substantive effect of a Change of Recommendation, Parent shall have the right to terminate this Agreement as set forth in Section 8.4(b) (it being understood that a statement by the Company that factually describes the Company’s Obligation to comply receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9 14d-9(f) under the Exchange Act, shall not be deemed a Change of Recommendation).
Appears in 2 contracts
Samples: Merger Agreement (Simcere Pharmaceutical Group), Merger Agreement (Ren Jinsheng)
No Solicitation of Transactions. (a) Section 6.4.1 The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willshall not, and that it will shall cause its Subsidiaries not to, and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, shall not authorize or permit any investment banker, attorney or accountant retained by it or any Subsidiary) not Company Representative to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or knowingly take any other action to facilitate, facilitate or encourage the submission of any inquiries Takeover Proposal or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may could reasonably be expected to lead toto any Takeover Proposal, any Competing Transactionor, subject to Section 6.4.2, (iii) enter into conduct or maintain or continue engage in any discussions or negotiations with with, disclose any Person in furtherance non-public information relating to the Company or any of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree its Subsidiaries to, approve afford access to the business, properties, assets, books or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees records of the Company or any of its SubsidiariesSubsidiaries to, or knowingly assist, participate in, facilitate or encourage any investment bankereffort by, financial advisorany third party that is seeking to make, attorneyor has made, accountant any Takeover Proposal, (ii) (a) amend or other representative retained by grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its SubsidiariesSubsidiaries or (b) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). Subject to Section 6.4.2, neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Recommendation, or recommend a Takeover Proposal, fail to recommend against acceptance of any tender offer or exchange offer for the shares of Company Stock within ten (10) Business Days after the commencement of such offer, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact foregoing actions (including material amendments or proposed material amendmentsany of the foregoing, a “Company Adverse Recommendation Change”). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Subsidiaries to, cease immediately cease and cause to be terminated terminated, and shall not authorize or knowingly permit any Company Representatives to continue, any and all existing activities, discussions or negotiations negotiations, if any, with any Person that may have been third party conducted heretofore prior to the date hereof with respect to a Competing Transaction. The Company any Takeover Proposal and shall not release cause any Person from, such third party (or waive any provision of, any confidentiality its agents or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement advisors) in connection with its consideration possession of acquiring (whether by merger, acquisition non-public information in respect of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore of its Subsidiaries that was furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, Subsidiaries to return or destroy (iiiand confirm destruction of) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with all such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)information.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Hecla Mining Co/De/), Merger Agreement (Hecla Mining Co/De/)
No Solicitation of Transactions. (a) The Company agrees Each of Sirona and DENTSPLY shall immediately cease, and shall cause its respective Subsidiaries and Representatives to immediately cease, any discussions or negotiations with any Person that neither it nor may be ongoing with respect to a Competing Proposal, or any Subsidiary nor proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly to Sirona or DENTSPLY, as applicable, any confidential information that has been provided in any such discussions or negotiations. From the date hereof until the earlier of the directorsEffective Time or the date of termination of this Agreement in accordance with Article 7, officers or employees each of it or any Subsidiary willSirona and DENTSPLY shall not, and that it will shall cause its respective Subsidiaries and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or induce (including by way of furnishing nonpublic informationinformation which has not been previously publicly disseminated), or take any other action designed to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that which constitutes, or may could reasonably be expected to lead to, any Competing TransactionProposal, or (ii) engage in any discussions or negotiations regarding any Competing Proposal; provided, however, that (x) such party may ascertain facts from the Person making an unsolicited Competing Proposal for the sole purpose of the Sirona Board or the DENTSPLY Board, as applicable, informing itself about the terms of such Competing Proposal and the Person that made it and (y) if, prior to obtaining the Sirona Shareholder Approval (in the case of Sirona) or the DENTSPLY Shareholder Approval (in the case of DENTSPLY) and following the receipt of a bona fide written Competing Proposal made after the date hereof that the Sirona Board or DENTSPLY Board, as applicable, determines in good faith (after receiving advice of its financial advisor and of its outside legal counsel) is or could reasonably be expected to lead to a Superior Proposal and that was not, directly or indirectly, solicited, initiated or knowingly encouraged in violation of this Section 5.4, the Sirona Board or the DENTSPLY Board, as applicable, determines in good faith, after consultation with outside legal counsel, that a failure to take action with respect to such Competing Proposal, as applicable, would be inconsistent with its fiduciary duties to Sirona’s shareholders or DENTSPLY’s shareholders, as applicable, under applicable Law, Sirona or DENTSPLY may, in response to such Competing Proposal, as applicable, and subject to compliance with Section 5.4(c), (A) furnish information with respect to Sirona or DENTSPLY, as applicable, to the Person making such Competing Proposal pursuant to an Acceptable Confidentiality Agreement, and (B) engage in discussions or negotiations with such Person regarding such Competing Proposal. Except as expressly permitted by this Section 5.4, each of DENTSPLY and Sirona shall not, and shall cause their respective Subsidiaries and Representatives not to, from and after the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article 7, directly or indirectly (1) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement (other than an Acceptable Confidentiality Agreement) with respect to any Competing Proposal; (2) take any action to make the provisions of any takeover statute inapplicable to any transactions contemplated by a Competing Proposal; or (3) terminate, amend, release, modify or knowingly fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar agreement entered into by the applicable party in respect of or in contemplation of a Competing Proposal (other than to the extent the DENTSPLY Board or the Sirona Board, as applicable, determines in good faith after consultation with its outside legal counsel, that failure to take any of such actions under clause (3) would be inconsistent with its fiduciary duties under applicable Law), or (4) propose to do any of the foregoing. For the avoidance of doubt, nothing in this Section 5.4(a) shall relieve any party from its obligations under Section 5.6.
(b) Notwithstanding any other provision of this Agreement, including Section 5.3 but subject to compliance with this Section 5.4, prior to receipt of the Sirona Shareholder Approval, the Sirona Board may, or, prior to receipt of the DENTSPLY Shareholder Approval, the DENTSPLY Board may, in response to any bona fide written Competing Proposal that was not, directly or indirectly, solicited, initiated or knowingly encouraged in violation of this Section 5.4, effect a Sirona Adverse Recommendation Change or a DENTSPLY Adverse Recommendation Change, as applicable, if and only if (i) the Sirona Board or the DENTSPLY Board, as applicable, concludes in good faith, after consultation with Sirona’s or DENTSPLY’s outside financial advisors and outside legal counsel, that such Competing Proposal constitutes a Superior Proposal and (ii) the DENTSPLY Board or the Sirona Board, as applicable, provides the other party five (5) Business Days prior written notice of its intention to take such action (a “Competing Proposal Notice”), which notice shall include the information with respect to such Competing Proposal that is specified in Section 5.4(c), as well as a copy of such Competing Proposal (it being agreed that neither the delivery of such notice by a party nor any public announcement thereof that such party determines it is required to make under applicable Law shall constitute a Sirona Adverse Recommendation Change or a DENTSPLY Adverse Recommendation Change, as applicable, unless and until such party shall have failed at or prior to the end of the period referred to in clause (iii) below (and, upon the occurrence of such failure, such notice and such public announcement shall constitute a Sirona Adverse Recommendation Change or a DENTSPLY Adverse Recommendation Change, as applicable) to publicly announce that it (A) is recommending the Transactions and (B) has determined that such other Competing Proposal (taking into account (x) any modifications or adjustments made to the Transactions agreed to by the other party in writing and (y) any modifications or adjustments made to such other Competing Proposal) is not a Superior Proposal and has publicly rejected such Competing Proposal); (iii) during the five (5) Business Days following such written notice (the “Negotiation Period”), if requested by the other party, the Board of Directors effecting the recommendation change and its Representatives have negotiated in good faith with the other party regarding any revisions to the terms of the Transactions proposed by the other party in response to such Competing Proposal; and (iv) at the end of the five (5) Business Day period described in the foregoing clause (iii), the Sirona Board or DENTSPLY Board, as applicable, concludes in good faith, after consultation with Sirona’s or DENTSPLY’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement to which the other party has agreed in writing to make to the terms of the Transactions), that the Competing Proposal continues to be a Superior Proposal and, after consultation with Sirona’s or DENTSPLY’s outside legal counsel, that the failure to make a Sirona Adverse Recommendation Change or DENTSPLY Adverse Recommendation Change, as applicable, would be inconsistent with the exercise by the Sirona Board or DENTSPLY Board of its fiduciary duties to the shareholders of Sirona or shareholders of DENTSPLY under applicable Law. Any material amendment or modification to any Competing Proposal shall require a new Competing Proposal Notice and the Negotiation Period shall be extended by an additional three (3) Business Days from the date of receipt of such new Competing Proposal Notice.
(c) In addition to the obligations of DENTSPLY and Sirona set forth in Section 5.4(a) and Section 5.4(b), DENTSPLY or Sirona shall promptly, and in any event no later than 24 hours, after it receives (i) any Competing Proposal or indication by any Person that is considering making a Competing Proposal, (ii) enter into any request for non-public information relating to DENTSPLY or maintain Sirona or continue their respective Subsidiaries other than requests for information in the ordinary course of business consistent with past practice and unrelated to a Competing Proposal or (iii) any inquiry or request for discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse regarding any Competing Transaction or enter into any letter Proposal, notify the other party orally and in writing of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officersforegoing occurrences, directors or employees the identity of the Company person making such request, inquiry or Competing Proposal and a copy of such request, inquiry or Competing Proposal (or where no such copy is available, a reasonably detailed description of such request, inquiry or Competing Proposal), including any modifications thereto. Each party shall keep the other party reasonably informed (orally and in writing) on a current basis (and in any event at the other party’s request and otherwise no later than 24 hours after the occurrence of its Subsidiariesany material changes, developments, discussions or negotiations) of the status of any investment bankerrequest, financial advisorinquiry or Competing Proposal (including the terms and conditions thereof and of any modification thereto), attorneyand any material developments, accountant discussions and negotiations, including furnishing copies of any written inquiries, material correspondence and draft documentation, and written summaries of any material oral inquiries or other representative retained by discussions. Without limiting the Company or any of its Subsidiariesforegoing, to take any such action. The Company each party shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (124 hours) Business Day after notify the Company attains knowledge thereof), other party orally and in writingwriting if it determines to begin providing information or to engage in discussions or negotiations concerning a Competing Proposal pursuant to Section 5.4. Each of DENTSPLY and Sirona agrees that, subject to applicable restrictions under applicable Law, it shall, prior to or concurrent with the time it is provided to any third parties, provide to the other party any non-public information concerning DENTSPLY or Sirona and their respective Subsidiaries that DENTSPLY or Sirona provided to any third party in connection with any Competing Proposal which was not previously provided to the other party.
(d) Notwithstanding anything in this Section 5.4 to the contrary, at any time prior to obtaining the DENTSPLY Shareholder Approval or the Sirona Shareholder Approval, the DENTSPLY Board or the Sirona Board may make a DENTSPLY Adverse Recommendation Change or a Sirona Adverse Recommendation Change, as applicable, if (i) such board determines that an Intervening Event has occurred and is continuing and (ii) such board determines in good faith (after consultation with outside counsel) that the failure to make a DENTSPLY Adverse Recommendation Change or a Sirona Adverse Recommendation Change, as applicable, in response to such Intervening Event would be inconsistent with its fiduciary duties to the applicable party’s shareholders under applicable Law; provided that (x) the DENTSPLY Board or the Sirona Board has given the other party at least five (5) Business Days prior written notice of its intention to take such action and specifying in reasonable detail the circumstances related to such determination and (y) prior to effecting a DENTSPLY Adverse Recommendation Change or a Sirona Adverse Recommendation Change, the applicable party has negotiated, and has caused its Representatives to negotiate, in good faith with the other party during such notice period to the extent such other party wishes to negotiate, to enable such party to revise the terms of this Agreement, such that the failure to make a DENTSPLY Adverse Recommendation Change or a Sirona Adverse Recommendation Change, as applicable, would not be inconsistent with its fiduciary duties to shareholders under applicable Law.
(e) Nothing contained in this Agreement shall prohibit the DENTSPLY Board or the Sirona Board from (i) taking and disclosing to their shareholders, as applicable, a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act, (ii) making any proposal disclosure to their shareholders, as applicable, if the Sirona Board or offerDENTSPLY Board determines in good faith, after consultation with its outside counsel, that the failure to make such disclosure would be inconsistent with its duties to shareholders under, or any inquiry would violate, applicable Law; or contact with any Person with respect thereto(iii) making accurate disclosure to their shareholders, as applicable, of factual information regarding the business, financial condition or results of operations of DENTSPLY or Sirona or the fact that a Competing Transaction is Proposal has been made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer the material terms of such proposal (and such disclosure shall not be deemed to be a DENTSPLY Adverse Recommendation Change or inquiry a Sirona Adverse Recommendation Change, as applicable), so long as (A) any such disclosure includes the DENTSPLY Recommendation or contact (including material amendments the Sirona Recommendation, as applicable, without any modification or proposed material amendments). The Company shallqualification thereof and continues the prior recommendation of the DENTSPLY Board or Sirona Board, as the case may be, and shall direct (B) does not contain either an express DENTSPLY Adverse Recommendation Change (without giving effect to clause (y) of the definition thereof) or cause its and its Subsidiaries’ directorsan express Sirona Adverse Recommendation Change (without giving effect to clause (y) of the definition thereof), officersas applicable, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person other statements by or on behalf of the Company Board of Directors of such party which would reasonably be expected to have the same effect as a DENTSPLY Adverse Recommendation Change or any Subsidiarya Sirona Adverse Recommendation Change, as applicable.
(bf) Notwithstanding anything Any failure of DENTSPLY’s or Sirona’s respective Subsidiaries or its and their respective Representatives to the contrary in fully comply with this Section 10.05, prior 5.4 (as if such Subsidiaries or Representatives were directly subject to the Exchange Offer Closing this Section 5.4) shall be deemed a breach of this Section 5.4 by DENTSPLY or the Exchange Offer ExpirationSirona, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(cg) Except as otherwise provided in For purposes of this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dentsply International Inc /De/), Merger Agreement (Sirona Dental Systems, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any no Group Company and none of the directors, directors or officers or employees of it or any Subsidiary willGroup Company shall, and that it will shall cause its and its Subsidiaries’ agents, advisors and other representatives Representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Group Company), not to, in each case, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic informationinformation in a manner designed to encourage), or take any other action to facilitate, any inquiries or the making of any proposal or offer Acquisition Proposal (including, without limitation, any proposal or offer to its stockholdersshareholders) that constitutes, or may could reasonably be expected to lead to, any Competing TransactionAcquisition Proposal, or (ii) enter into or into, maintain or continue discussions or negotiations with with, or provide any Person nonpublic information relating to any Group Company or the Transactions to, any person or entity in furtherance of such inquiries connection with, or in order to obtain a proposal obtain, an Acquisition Proposal, or offer for a Competing Transaction, (iii) agree to, approve approve, adopt, endorse or recommend (or publicly propose to agree to approve, adopt, endorse or recommend) any Competing Transaction Acquisition Proposal, or enter into any letter of intent Alternative Acquisition Agreement, or other Contract relating to consummate, any Competing Transaction Acquisition Proposal, or (iv) authorize or permit any of the officers, directors or employees Representatives of the any Group Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such actionaction set forth in clauses (a)(i) – (a)(iii) of this Section 6.04 (in each case, other than to the extent expressly permitted pursuant to Section 6.04(b), 6.04(c) or 6.04(d)). The Company shall notify CIG and the NBCU Entities Parent as promptly as practicable (and in any event within one twenty-four (124) Business Day hours after the Company attains has knowledge thereof), orally and in writing, if of any proposal or offer, or any request for information or other inquiry or contact with any Person with respect theretorequest, regarding a Competing Transaction is madethat could reasonably be expected to lead to an Acquisition Proposal, specifying (x) the material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the party making such proposal or offer or inquiry or contact contact, and (including material amendments or proposed material amendments)z) whether the Company has any intention to provide confidential information to such person. The Company shallshall keep Parent informed, on a reasonably current basis (and in any event within twenty-four (24) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material terms and conditions thereof) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements. Without limiting the foregoing, the Company shall (A) promptly notify Parent orally and in writing if it determines to initiate actions concerning a proposal, offer, inquiry, contact or request, in each case as permitted by this Section 6.04, and (B) provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board or members of the Special Committee) of any meeting of the Company Board or Special Committee at which the Company Board or Special Committee, as applicable, may consider any Acquisition Proposal. The Company immediately shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transactionan Acquisition Proposal. The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Third Party which prohibits the Company from providing such information to Parent, or release any Person Third Party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by mergeran Acquisition Proposal, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if other than as expressed permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiaryunder this Section 6.04.
(b) Notwithstanding anything Subject to compliance with the contrary in other provisions of this Section 10.056.04, prior to obtaining the Exchange Offer Closing or the Exchange Offer Expiration, as applicableRequisite Company Vote, the Company Board may furnish information to, and enter into discussions with, a Person who directly or indirectly through the Company’s Representatives (i) contact any Third Party that has made an unsolicited, written, bona fide proposal or offer regarding an Acquisition Proposal that was not initiated or solicited in breach of Section 6.04(a) solely in order to clarify the terms and conditions thereof so as to assess whether such proposal or offer constitutes or is reasonably expected to result in a Competing TransactionSuperior Proposal, and (ii) furnish information to, and enter into discussions with, such Third Party to the Board extent the Special Committee has (iA) determined, determined in its good faith judgment (after consultation with its a financial advisor), advisor who shall be an independent internationally recognized investment banking firm and outside legal counsel) that such proposal or offer constitutes or is reasonably likely to constitute result in a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), and that, in light of such Superior Proposal, the furnishing of failure to furnish such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person Third Party would be inconsistent with the directors’ fiduciary duties under applicable Law, and (ivB) obtained from such Person person an executed confidentiality agreement on terms no less favorable to the Company in the aggregate than those contained in the Confidentiality Agreements (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 and shall otherwise be on no less favorable terms to the Transaction Agreements Company than the Confidentiality Agreements); provided that the Company shall provide written notice to which it Parent at least two (2) Business Days prior to taking any action set forth in clauses (b)(i) or (b)(ii) of this Section 6.04 and shall concurrently make available to Parent any information concerning any Group Company that is a party)provided to any such person and that was not previously made available to Parent or its Representatives.
(c) Except as otherwise provided set forth in Section 6.04(d) (and, for the avoidance of doubt, the proviso to this AgreementSection 6.04(c)), neither the Company Board nor any committee thereof shall withdraw (i) (A) withhold, withdraw, qualify, amend or modify, or propose to withdraw or modify, modify in a manner adverse to CIG and the NBCU EntitiesHoldco, Parent or Merger Sub, or propose (publicly or otherwise) to withhold, withdraw, qualify, amend or modify in a manner adverse to Holdco, Parent or Merger Sub, the approval Company Recommendation, (B) take any action or recommendation by make any other public statement in connection with the Board or any such committee of the Transaction Agreements to which Shareholders’ Meeting inconsistent with the Company Recommendation, (C) if a tender offer or exchange offer that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by its shareholders within ten (10) Business Days after commencement (any of such actions described in the foregoing clauses (A), (B) or (C), a party and “Change in the TransactionCompany Recommendation”) or (D) adopt, including the Tender Offer and the Reverse Stock Splitapprove, or approve endorse or recommend, or propose (publicly or otherwise) to adopt, approve, endorse or recommend any Acquisition Proposal, provided that a “stop, look and listen” communication by the Company Board or the Special Committee pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication with respect to an Acquisition Proposal, which did not result from any breach of this Section 6.04 shall not be deemed to be a Change in the Company Recommendation, nor (ii) cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement.
(d) Notwithstanding the foregoing but subject to compliance by the Company and the Company Board with this Section 6.04, from the date of this Agreement and at any time prior to the receipt of the Requisite Company Vote, the Company Board (upon the unanimous recommendation of the Special Committee) may (x) in response to an Intervening Event, effect a Change in the Company Recommendation and authorize the Company to terminate this Agreement or (y) if the Company has received an unsolicited, bona fide written Acquisition Proposal and the Special Committee determines, in its good faith judgment, upon advice by a financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal, effect a Change in the Company Recommendation with respect to such Superior Proposal and authorize the Company to terminate this Agreement to enter into any letter of intent, agreement Contract, commitment or obligation with respect to such Superior Proposal, but only if:
(1) the Company shall have complied with its obligations under this Section 6.04;
(2) (A) with respect to a Change in the Company Recommendation in response to an Intervening Event, the Company Board (upon the unanimous recommendation of the Special Committee, after consultation with its financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel) determines in good faith that failure to do so would be inconsistent with its fiduciary duties under applicable Laws, or (B) with respect to a Change in the Company Recommendation or a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a bona fide written Acquisition Proposal that did not result from a breach of this Section 6.04, the Company Board (upon the unanimous recommendation of the Special Committee, after consultation with its internationally recognized investment banking firm and outside legal counsel) determines in good faith that (x) failure to take such action would be inconsistent with its fiduciary duties under applicable Laws, (y) such Acquisition Proposal constitutes a Superior Proposal;
(3) prior to effecting a Change in the Company Recommendation in connection with, or a termination of this Agreement as a result of, an Intervening Event in accordance with Section 6.04(d)(x), or a Change in the Company Recommendation in connection with, or a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to, a bona fide written Acquisition Proposal in accordance with Section 6.04(d)(y), the Company shall have complied with the requirements of this Section 6.04 and shall (x) provide at least five (5) days’ prior written notice to Parent (the “Notice Period”) advising Parent (A) of the specific material circumstances of such Intervening Event or (B) that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, providing a copy of any Competing Transactionwritten documentation with respect to 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 the manner in which it intends (or may intend) to do so, it being understood that such notice or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company Recommendation, and (y) permit Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and any proposed modifications or adjustments with respect thereto (to the extent Parent desires to make such presentation) and negotiate with and cause its financial and legal advisors to negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal would cease to constitute a Superior Proposal or so that a failure to effect a Change in the Company Recommendation would no longer be inconsistent with the directors’ fiduciary duties under applicable Law, as applicable, and consider in good faith any modifications or adjustments regarding this Agreement proposed by Parent; provided that any material modifications to such Acquisition Proposal that the Special Committee previously determined to be a Superior Proposal shall be deemed a new Acquisition Proposal and the Company shall be required to again comply with the requirements of this Section 6.04(d); and
(4) following the end of the Notice Period (and any renewed period thereof), the Special Committee shall have unanimously determined in good faith (after consultation with a financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel, as applicable) after considering the terms of any modifications or adjustments to this Agreement proposed by Parent, that (x) with respect to a Change in the Company Recommendation in accordance with Section 6.04(d)(x) or Section 6.04(d)(y), failure to effect a Change in the Company Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Laws, and shall have communicated its unanimous recommendation to the Company Board to effect a Change in the Company Recommendation with respect to such Intervening Event or such Superior Proposal and (y) with respect to a Change in the Company Recommendation in connection with, or a termination of this Agreement to enter into an Alternative Acquisition with respect to a bona fide written Acquisition Proposal in accordance with Section 6.04(d)(y), such Acquisition Proposal continues to constitute a Superior Proposal.
(de) The parties acknowledge Nothing contained in this Section 6.04 shall be deemed to prohibit the Company or the Company Board (or the Special Committee) from complying with its disclosure obligations under applicable Laws, including U.S. federal Law, with regard to an Acquisition Proposal, including taking and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation disclosing to comply with its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to shareholders); provided that any such disclosure (other than a statement that the Company Board or the Special Committee has received and is currently evaluating such Acquisition Proposal and/or describing the operation of this Agreement with respect thereto, or a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be a Change in the Company Recommendation unless the Company Board expressly publicly reaffirms the Company Recommendation within two (2) Business Days following any request by Parent.
Appears in 2 contracts
Samples: Merger Agreement (Chuanwei Zhang), Merger Agreement (China Ming Yang Wind Power Group LTD)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary shall, nor any shall it authorize or permit the Representatives of the directors, officers Company or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not the Subsidiaries to, directly or indirectly, (i) solicit, solicit or initiate or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing nonpublic information), or take any other action to facilitate, ) any inquiries or the making implementation or submission of any proposal Acquisition Proposal, or offer (includingii) participate in discussions or negotiations regarding, without limitationor furnish to any person any non-public information in connection with, any proposal Acquisition Proposal; PROVIDED, HOWEVER, that, prior to the adoption of this Agreement by the Company's stockholders at the Company Stockholders' Meeting, nothing contained in this Agreement shall prevent the Company or offer the Company Board from furnishing information to, or engaging in negotiations or discussions with, any person in connection with an unsolicited bona fide written Acquisition Proposal by such person, if and only to the extent that prior to taking such action (A) the Company Board believes in good faith (after consultation with its stockholdersadvisors) that constitutessuch Acquisition Proposal is, or may could reasonably be expected to lead toresult in, a Superior Proposal, and the Company Board determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, and (B) the Company Board receives from such person an executed confidentiality agreement, the terms of which are substantially similar to and no less favorable to the Company than those contained in the Confidentiality Agreement. Neither the Company nor any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or Subsidiary shall enter into any letter of intent intent, acquisition agreement or similar agreement with respect to an Acquisition Proposal (other Contract relating than a confidentiality agreement referred to any Competing Transaction or in this Section 6.04(a)).
(ivb) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities Parent as promptly as practicable (and in any event within one (148 hours) Business Day after of the receipt by the Company attains knowledge thereof), orally and in writing, if or any proposal or offerof the Subsidiaries, or any inquiry of its or contact with their respective Representatives, of any Person with respect theretobona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding a Competing Transaction is madeany Acquisition Proposal, specifying the material terms and conditions thereof and the identity of the party making such proposal proposal. The Company shall keep Parent reasonably informed of the status of any such discussions or offer negotiations and of any modifications to such inquiries, proposals or inquiry offers (the Company agreeing that it shall not, and shall cause the Subsidiaries not to, enter into any confidentiality agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing such information to Parent). The Company agrees that neither it nor any of the Subsidiaries shall terminate, waive, amend or contact (including material amendments modify any provision of any existing standstill or proposed material amendments)confidentiality agreement to which it or any of the Subsidiaries is a party and that it and the Subsidiaries shall enforce the provisions of any such agreement. The Company shall, and shall direct or cause the Subsidiaries and its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) their Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Person parties that may have been conducted heretofore be ongoing with respect to a Competing Transaction. The Company any Acquisition Proposal as of the date hereof, shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement take reasonable steps to which it is a party inform its and the Company also agrees to promptly Subsidiaries' Representatives of the obligations undertaken in this Section 6.04 and shall request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore previously furnished to any such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may third parties be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)returned promptly.
(c) Except as otherwise provided set forth in this AgreementSection 6.04, neither the Company Board nor (or any committee thereof thereof) shall withdraw or modifynot, or and shall not publicly propose to to, (i) withdraw or modify, in a manner adverse to CIG and the NBCU EntitiesParent or Merger Sub, the approval or recommendation of this Agreement, the Merger or the other Transactions by the Company Board (or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or thereof); (ii) approve or recommend, recommend any Acquisition Proposal; or cause or permit the Company to enter into (iii) approve any letter of intent, acquisition agreement or obligation similar agreement with respect toto any Acquisition Proposal (other than a confidentiality agreement referred to in this Section 6.04). Notwithstanding the foregoing, any Competing Transactionprior to the adoption of this Agreement by the Company's stockholders at the Company Stockholders Meeting, (x) in response to the receipt of an unsolicited bona fide written Acquisition Proposal, if the Company Board (A) determines in good faith (after consultation with its advisors) that such Acquisition Proposal is a Superior Proposal and (B) determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw or modify the Company Board Recommendation or (y) other than in connection with an Acquisition Proposal, if the Company Board determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, then the Company Board may withdraw or modify the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a "CHANGE IN BOARD RECOMMENDATION").
(d) The parties acknowledge Nothing contained in this Agreement shall prohibit the Company from taking and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation disclosing to comply with Rule its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange ActAct or from making any disclosure to the Company's stockholders if the Company Board (or any committee thereof) determines in good faith (after consultation with its outside legal counsel) that it is required to do so under applicable Law; PROVIDED, HOWEVER, that neither the Company nor the Company Board (nor any committee thereof) shall (i) recommend that the stockholders of the Company tender their Shares in connection with any such tender or exchange offer (or otherwise approve or recommend any Acquisition Proposal) or (ii) withdraw or modify the Company Board Recommendation, unless in each case the requirements of Section 6.04(c) shall have been satisfied.
(e) The Company shall not take any action to exempt any person from the restrictions on "business combinations" contained in Section 203 of the DGCL (or any similar provision) or in Article Tenth of the Certificate of Incorporation of the Company or otherwise cause such restrictions not to apply.
(f) Except as set forth in Section 8.03(d) with respect to an Acquisition Proposal, for purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Prime Hospitality Corp), Merger Agreement (Prime Hospitality Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Section 6.4.1. Subject to the other provisions of this Section 6.4, the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) each Company Subsidiary to, immediately cease and cause to be terminated suspended any discussions or negotiations with any Person parties (other than Parent, Merger Sub and the Parent Representatives) that may have been conducted heretofore be ongoing with respect to a Competing TransactionTakeover Proposal. The Company shall not, and shall cause each Company Subsidiary not release to, (i) directly or indirectly (through any Person fromPerson) solicit, initiate, or waive knowingly encourage any Takeover Proposal, (ii) enter into any agreement or agreement in principle with respect to a Takeover Proposal, or (iii) participate in any way in any negotiations or discussions regarding, or furnish or disclose to any Third Party any confidential information with respect to, any Takeover Proposal; provided, however, that at any time prior to obtaining the Stockholder Approval and notwithstanding any provision ofof this Agreement to the contrary (including this Section 6.4), any confidentiality in response to a bona fide written Takeover Proposal that was received but not solicited by the Company, a Company Subsidiary, or standstill agreement a Company Representative on its behalf, after the date hereof that the Company Board determines in good faith constitutes, or could reasonably be expected to which it is lead to, a party Superior Proposal, the Company may furnish information and/or draft agreements with respect to the Company and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information Subsidiaries to, and enter into negotiations or discussions with, the Person making such Takeover Proposal (and its officers, directors, partners, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) pursuant to a Person who has made an unsolicitedcustomary confidentiality agreement not less favorable in any material respect to the Company than the Confidentiality Agreement (exclusive of any standstill provisions contained therein). Parent and Merger Sub agree and acknowledge that, writtenwith respect to any agreement between the Company and any Third Party that contains a provision prohibiting such Third Party from making a Takeover Proposal without first obtaining from the Company Board a waiver of such provision or consent to such Takeover Proposal, bona fide proposal any such waiver or offer regarding consent on the part of the Company Board may be given by the Company Board and, if given, shall not be considered a Competing Transactionsolicitation of a Takeover Proposal in violation of this Section 6.4.
Section 6.4.2. Notwithstanding any provision of this Section 6.4 to the contrary, and the Company Board has may (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, modify in a manner adverse to CIG Parent (or not continue to make) the Company Recommendation, (ii) approve or recommend a Superior Proposal (any action described in clause (i) or this clause (ii), a “Company Adverse Recommendation Change”), and/or (iii) subject to Section 6.4.3, enter into an agreement regarding a Superior Proposal, if (x) in the case of clause (i), (ii) or (iii) above, the Company Board has determined in good faith that the failure to take such action would be inconsistent with its fiduciary duties to the holders of shares of Company Common Stock under applicable Law and (y) in the case of clause (iii) above, the Company shall have terminated this Agreement in accordance with the provisions of Section 8.1(c)(iii) hereof.
Section 6.4.3. The Company shall promptly (and in any event within forty-eight (48) hours) advise Parent orally and in writing of the Company’s receipt of any Takeover Proposal or any request for information in connection with a possible Takeover Proposal and the NBCU Entitiesmaterial terms and conditions of such Takeover Proposal or request, but not the identity of the Person making such Takeover Proposal. In addition, the approval Company shall not accept or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any agreement, letter of intentintent or similar document (other than a confidentiality agreement as contemplated by Section 6.4.1) concerning a Takeover Proposal for a period of not less than three (3) Business Days after Parent’s receipt of notice concerning a Takeover Proposal, agreement and during such three (3) Business Day period, at Parent’s request, the Company shall negotiate with Parent in good faith. If, prior to the conclusion of such three (3) Business Day period, Parent and Merger Sub shall execute and deliver a Top-Up Amendment to the Company, then the Company shall cease all discussions or obligation negotiations with respect to, any Competing Transactionto the Takeover Proposal unless and until a subsequent Superior Proposal is made.
Section 6.4.4. Nothing contained in this Agreement shall prohibit the Company or the Company Board from (di) The parties acknowledge taking and agree that nothing contained herein shall affect disclosing to the stockholders of the Company a position contemplated by Rule 14e-2 promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if, in any way interfere with the Company’s Obligation to comply with good faith judgment of the Company Board, such disclosure would be necessary under applicable Law (including Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act).
Appears in 2 contracts
Samples: Merger Agreement (Psychiatric Solutions Inc), Merger Agreement (Horizon Health Corp /De/)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Except as expressly permitted by this Section 7.3, Terra BDC and the Terra BDC Advisor shall not, and Terra BDC shall cause each of the directors, officers or employees of it or any Subsidiary willTerra BDC Subsidiaries not to, and that it will shall instruct and use their commercially reasonable efforts to cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) their respective Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information)or facilitate any inquiry, or take any other action to facilitate, any inquiries or the making of any proposal or offer (includingwith respect to, without limitationor the announcement, making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person (other than Terra REIT or its stockholdersRepresentatives) any non-public information or data in furtherance of, any Acquisition Proposal or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal (other than, in response to an unsolicited Acquisition Proposal or any unsolicited inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, to refer the inquiring Person to this Section 7.3 and to request clarification of the terms and conditions of any Acquisition Proposal so as to determine whether the terms and conditions of such Acquisition Proposal constitutes, or may could reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing TransactionSuperior Proposal), (iii) agree to, approve or endorse any Competing Transaction or enter into any definitive acquisition agreement, merger agreement, share exchange agreement, consolidation agreement, option agreement, joint venture agreement or partnership agreement (including any letter of intent or other Contract agreement in principle) (each, an “Alternative Acquisition Agreement”) relating to any Competing Transaction or Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to this Section 7.3(a)), (iv) authorize grant any waiver, amendment or permit release under any standstill or confidentiality agreement or any Takeover Statute or (v) agree, approve, recommend or propose to do any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such actionforegoing. The Company shall notify CIG Terra BDC and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company Terra BDC Advisor shall, and shall direct or cause its each of the Terra BDC Subsidiaries, and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) shall use their commercially reasonable efforts to cause their Representatives to, (A) immediately cease and cause to be terminated any discussions or all existing negotiations with any Person that may have been and its Representatives (other than the Terra REIT or its Representatives) conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person fromAcquisition Proposal, or waive any provision of, (B) enforce any confidentiality or standstill agreement or provisions of similar effect to which it Terra BDC or any Terra BDC Subsidiary is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration or of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company which Terra BDC or any SubsidiaryTerra BDC Subsidiary is a beneficiary with regards to any Acquisition Proposal, if anyand (C) request the prompt return or destruction, to return (or if the extent permitted by the applicable any confidentiality agreement, destroy) of all confidential non-public information heretofore or data previously furnished to any such Person by and its Representatives with respect to any Acquisition Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person, its subsidiaries or any of their respective Representatives with respect to any Acquisition Proposal. Notwithstanding the foregoing, if, at any time following the date of this Agreement and prior to obtaining the Stockholder Approvals, (1) Terra BDC receives a written Acquisition Proposal that was not the result of a violation of this Section 7.3(a) and (2) the Terra BDC Board (based on behalf the recommendation of the Company or any Subsidiary.
(bTerra BDC Special Committee) Notwithstanding anything to the contrary determines in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its outside counsel and a financial advisor), ) that such proposal or offer Acquisition Proposal constitutes or is reasonably likely to constitute lead to a Superior Proposal and determines in good faith (after consultation with outside counsel) that its failure to take such action would be inconsistent with the duties of the Terra BDC directors under applicable Law, then Terra BDC may (and may authorize any Terra BDC Subsidiary and its Representatives to), after notifying Terra REIT of such determination, (x) furnish non-public information or data with respect to itself and its subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided, that (i) any non-public information or data provided to any such Person given such access shall have previously been provided to Terra REIT or shall be provided (to the extent permitted by applicable Law) to Terra REIT prior to or substantially concurrently with the time it is provided to such Person and (ii) no non-public information or data with respect to Terra REIT shall be provided to any such Person, and (y) participate in discussions and negotiations with the Person making such Acquisition Proposal (and such Person’s Representatives) regarding such Acquisition Proposal.
(b) Except as provided in Section 7.3(c), the Terra BDC Board (i) shall not fail to make or withdraw (or modify or qualify in any manner adverse to Terra REIT or publicly propose to withdraw, modify or qualify in any manner adverse to Terra REIT) the Terra BDC Board Recommendation or the determination of the advisability to its stockholders of the Merger and other transactions contemplated hereby, (ii) determinedadopt, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel)approve or publicly recommend, that, in light of such Superior endorse or otherwise declare advisable any Acquisition Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice fail to CIG and include the NBCU Entities of its intent to furnish information Terra BDC Board Recommendation, in whole or enter into discussions with such Person and in part in the Proxy Statement or any filing or amendment or supplement relating thereto, (iv) obtained from such Person fail to recommend against any then-pending tender or exchange offer that constitutes an executed confidentiality agreement Acquisition Proposal within ten (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 the Transaction Agreements to which 10) Business Days after it is announced or (v) fail, within three (3) Business Days of a partyrequest by Terra REIT following the public announcement of an Acquisition Proposal, to reaffirm the Terra BDC Board Recommendation (each such action set forth in this Section 7.3(b) being referred to herein as an “Adverse Recommendation Change”).
(c) Except as otherwise provided Notwithstanding anything in this AgreementAgreement to the contrary, neither at any time prior to obtaining the Stockholder Approvals, and following the compliance with this Section 7.3(c), the Terra BDC Board nor any committee thereof shall withdraw or modifymay:
(i) make an Adverse Recommendation Change in response to an Acquisition Proposal, or propose terminate this Agreement pursuant to withdraw Section 9.1(c)(ii) in order to concurrently enter into an Alternative Acquisition Agreement with respect to an Acquisition Proposal, if: (A) such Acquisition Proposal did not result from a material breach of Section 7.3(a); (B) the Terra BDC Board (based on the recommendation of the Terra BDC Special Committee) determines in good faith (after consultation with outside counsel and a financial advisor) that such Acquisition Proposal constitutes a Superior Proposal and determines in good faith (after consultation with outside counsel) that its failure to take such action would be inconsistent with the duties of the Terra BDC directors under applicable Law; (C) Terra BDC shall notify Terra REIT in writing, at least four (4) Business Days prior to effecting such Adverse Recommendation Change (the “Superior Proposal Notice Period”), of its intention to effect such Adverse Recommendation Change or modifygive notice of such termination (which notice shall include the material terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal and include copies of the current drafts of all material agreements between Terra BDC and the Person making such Superior Proposal (it being understood and agreed that such notice or the public disclosure by Terra BDC of such notice shall not in and of itself constitute an Adverse Recommendation Change)); (D) during the Superior Proposal Notice Period, Terra BDC shall negotiate with Terra REIT in good faith (to the extent Terra REIT wishes to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Acquisition Proposal that is the subject of the Superior Proposal notice described in clause (C) above ceases to be a Superior Proposal; (E) after the expiration of the negotiation period described in clause (D) above, the Terra BDC Board (based on the recommendation of the Terra BDC Special Committee) determines in good faith (after consultation with outside counsel and a financial advisor and after taking into account any amendments to this Agreement that Terra REIT has irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (D) above) that such Acquisition Proposal constitutes a Superior Proposal and determines in good faith (after consultation with outside counsel) that its failure to make an Adverse Recommendation Change or to give such notice of termination would be inconsistent with the duties of the Terra BDC directors under applicable Law; and (F) prior to Terra BDC entering into an Alternative Acquisition Agreement concerning such Superior Proposal, Terra BDC terminates this Agreement in accordance with Section 9.1(c)(ii); provided, that it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Superior Proposal notice, which shall require a new Superior Proposal Notice Period of two (2) Business Days, and compliance with this Section 7.3(c)(i) with respect to such new notice; or
(ii) make an Adverse Recommendation Change in response to an Intervening Event, if: (A) the Terra BDC Board (based on the recommendation of the Terra BDC Special Committee) determines in good faith (after consultation with outside counsel) that the failure to do so would be inconsistent with the duties of the Terra BDC directors under applicable Law; (B) Terra BDC shall notify Terra REIT in writing, at least four (4) Business Days prior to effecting such Adverse Recommendation Change (the “Intervening Event Notice Period”), of its intention to effect such Adverse Recommendation Change (which notice shall specify in reasonable detail the basis for the Adverse Recommendation Change and a description of the Intervening Event (it being understood and agreed that such notice or the public disclosure by Terra BDC of such notice shall not in and of itself constitute an Adverse Recommendation Change)), (C) during the Intervening Event Notice Period, Terra BDC shall negotiate with Terra REIT in good faith (to the extent Terra REIT wishes to negotiate) to make such adjustments to the terms and conditions of this Agreement such that failure to make an Adverse Recommendation Change would no longer be inconsistent with the duties of the Terra BDC directors under applicable Law, and (D) the Terra BDC Board (based on the recommendation of the Terra BDC Special Committee) shall determine, after the close of business on the last day of the Intervening Event Notice Period, in good faith (after consultation with outside counsel and after taking into account any amendments to this Agreement that Terra REIT has irrevocably agreed in writing to make as a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee result of the Transaction Agreements negotiations contemplated by clause (C) above) that, in light of the Intervening Event, failure to which make an Adverse Recommendation Change would be inconsistent with the Company is a party and duties of the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing TransactionTerra BDC directors under applicable Law.
(d) The parties acknowledge Terra BDC shall promptly (and agree that nothing contained herein shall affect or in any way interfere event, within one (1) Business Day) notify Terra REIT after it or any Terra BDC Subsidiary or any of their respective Representatives has received any Acquisition Proposal or inquiry, proposal or offer to enter into or seeking to have discussions or negotiations relating to a possible Acquisition Proposal. Such notice to Terra REIT shall indicate the identity of the Person making, and include the material terms and conditions, of such Acquisition Proposal, inquiry, proposal or offer (including a complete copy thereof if in writing and any related documents or correspondence). Following the date hereof, Terra BDC shall keep Terra REIT reasonably informed orally and in writing on a current basis (and in any event, within one (1) Business Day) of any material developments, discussions or negotiations regarding any Acquisition Proposal including providing a copy of all material documentation (including drafts) or material correspondence with respect thereto and upon the request of Terra REIT shall apprise Terra REIT of the status and details of such Acquisition Proposal. Terra BDC agrees that neither it nor any Terra BDC Subsidiary will enter into any agreement with any Person subsequent to the date hereof which prohibits Terra BDC or any Terra BDC Subsidiary from providing any information to Terra REIT in accordance with, or from otherwise complying with the Company’s Obligation terms of, this Section 7.3.
(e) Nothing contained in this Section 7.3 shall prohibit Terra BDC or the Terra BDC Board from (i) issuing a “stop, look and listen” communication pursuant to comply with Rule 14d-9(f) under the Exchange Act or taking and disclosing a position contemplated by Rule 14e-2(a), 14d-9 or Item 1012(a) of Regulation M-A under the Exchange Act, or (ii) making any disclosure to the stockholders of Terra BDC if, in the good faith judgment of the Terra BDC Board (after consultation with outside counsel (and based on the recommendation of the Terra BDC Special Committee)), failure to so disclose would be inconsistent with the duties of the directors of Terra BDC under applicable Law, and disclosure referred to in clauses (i) and (ii) shall not be deemed to be an Adverse Recommendation Change so long as any such disclosure (A) includes the Terra BDC Board Recommendation, without any modification or qualification thereof or continues the prior recommendation of the Terra BDC Board, and (B) does not contain an express Adverse Recommendation Change; provided, that in no event shall this Section 7.3(e) affect Terra BDC’s obligations specified in Section 7.3(b).
(f) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Terra Property Trust, Inc.), Merger Agreement (Terra Income Fund 6, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it will not, nor any Subsidiary nor will it permit any of the directors, officers or employees of it or any Subsidiary willits Subsidiaries to, and that it will instruct and cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic non-public information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including, without limitation, including any proposal or offer to its the Company’s stockholders) that constitutes), or may reasonably be expected with respect to lead to, any Competing Company Transaction, (ii) enter into into, maintain, continue or maintain otherwise engage or continue participate in any discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for with respect to a Competing Company Transaction, (iii) agree to, approve approve, endorse, recommend or endorse consummate any Competing Transaction or Company Transaction, (iv) enter into any letter of intent or other Contract relating to any Competing Company Transaction Agreement or (ivv) resolve, propose or agree, or authorize or permit any Representative, to do any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments)foregoing. The Company shall, and shall direct or cause its Subsidiaries to, and shall instruct and cause its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been Persons (other than Parent and its Affiliates) conducted heretofore prior to the execution of this Agreement by the Company or any of its Subsidiaries or Representatives with respect to a Competing Company Transaction. The Company shall not, and shall cause its Subsidiaries not to, and the Company shall instruct and cause its Representatives not to, release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it or one of its Affiliates is a party and in connection with a Competing Company Transaction, unless the Company also agrees Board (or a committee thereof) determines in its good faith judgment, after consulting with outside legal counsel, that failure to take any such action would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law. The Company shall, and shall cause its Subsidiaries to, promptly request each Person (other than Parent and its Affiliates) that has heretofore executed a confidentiality agreement with the Company or any of its Subsidiaries in connection with its such Person’s consideration of acquiring a Competing Company Transaction (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any), to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to seek to enforce such Person’s obligation to do so.
(b) The Company shall promptly (and in any event within twenty-four (24) hours after the Company attains knowledge thereof) notify Parent, orally and in writing, after the receipt by the Company or on behalf any of its Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Company Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Affiliates or for access to the business, properties, assets, books or records of the Company or any Subsidiaryof its Affiliates. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including in reasonable detail the terms and conditions (if any) of such proposed Competing Company Transaction, and the Company shall promptly (and in any event within twenty-four (24) hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed of the status and details of (including discussions with respect thereto or amendments to) any such proposal, inquiry, offer or request. The Company agrees that it shall substantially simultaneously provide to Parent any non-public information concerning the Company that may be made available pursuant to Section 7.01(c) to any other Person in response to any such proposal, inquiry, offer or request (including discussions with respect thereto or any amendment to) unless such information has previously been provided or made available by the Company to Parent.
(bc) Notwithstanding anything to the contrary in this Section 10.057.01, at any time prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicableAcceptance Time, the Board Company may furnish information to, and enter into discussions and negotiations with, a any Person (or any of such Person’s Representatives) who has made an unsolicited, a written, bona fide proposal or offer regarding with respect to a Competing TransactionCompany Transaction that did not arise or result from any material breach of Section 7.01(a) if, prior to furnishing such information and entering into such discussions and negotiations, (A) the Company Board (or a committee thereof) has (i) determined, in its good faith judgment (after consultation consulting with its a financial advisoradvisor of nationally recognized reputation and outside legal counsel), that such proposal or offer constitutes constitutes, or is reasonably likely to constitute lead to, a Superior Proposal, (iiB) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) has provided written notice to CIG and the NBCU Entities Parent of its intent to furnish information or to, and enter into discussions with and negotiations with, such Person and (ivC) the Company has obtained (to the extent not already obtained) from such Person an executed confidentiality agreement Acceptable Confidentiality Agreement (it being understood that such confidentiality agreement an Acceptable Confidentiality Agreement and any related agreements shall not include any provision calling for any granting such Person exclusive right rights to negotiate with such party the Company or having the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements this Agreement) and, promptly upon its execution, delivered to which it is Parent a party)copy of such Acceptable Confidentiality Agreement.
(cd) Except as otherwise provided set forth in this AgreementSection 7.01(d), neither the Company Board nor any committee thereof shall withdraw (i) withdraw, qualify, modify, amend or modifyfail to make, or propose publicly to withdraw withdraw, qualify, modify or modifyamend the Company Board Recommendation (or fail to include the Company Board Recommendation in the Schedule 14D-9), (ii) make any public statement or take any action inconsistent with the Company Board Recommendation or (iii) approve or adopt, or recommend the approval or adoption of, or publicly propose to approve or adopt, any Competing Company Transaction (any of the actions described in (i), (ii) or (iii), a “Change in the Company Board Recommendation”). Notwithstanding the foregoing:
(i) in response to an Intervening Event that has occurred after the date of this Agreement but prior to the Offer Closing, the Company Board may effect a Change in the Company Board Recommendation if: (x) prior to effecting the Change in the Company Board Recommendation, the Company promptly notifies Parent, in writing, at least five (5) Business Days (the “Intervening Event Notice Period”) before taking such action of its intent to consider such action (which notice shall not, by itself, constitute a Change in the Company Board Recommendation), and which notice shall include a reasonably detailed description of the underlying facts giving rise to, and the reasons for taking, such action; (y) the Company shall, and shall cause its Representatives to, during the Intervening Event Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that the underlying facts giving rise to, and the reasons for taking such action, ceases to constitute an Intervening Event, if Parent, in its sole discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Intervening Event Notice Period, there is any material development in an Intervening Event, the Intervening Event Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Intervening Event Notice Period subsequent to the time the Company notifies Parent of any such material development (it being understood that there may be multiple extensions)); and (z) the Company Board determines in good faith, after consulting with outside legal counsel and a financial advisor of nationally recognized reputation, that the failure to effect such Change in the Company Board Recommendation, after taking into account any adjustments made by Parent during the Intervening Event Notice Period, would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law; and
(ii) if at any time prior to the Acceptance Time and in response to the receipt of an offer or proposal with respect to a Competing Company Transaction that did not arise or result from any material breach of Section 7.01(a), the Company Board (or a committee thereof) determines in its good faith judgment (after consulting with a financial advisor of nationally recognized reputation and outside legal counsel) that such offer or proposal constitutes a Superior Proposal and determines in its good faith judgment, after consulting with its outside legal counsel, that a failure to make a Change in the Company Board Recommendation with respect to such Superior Proposal would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law, then the Company Board may, with respect to such Superior Proposal, (x) make a Change in the Company Board Recommendation or (y) cause the Company to terminate this Agreement pursuant to Section 9.01(f) in order to enter into a definitive agreement providing for such Superior Proposal if, in each case:
(1) the Company has provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to make a Change in the Company Board Recommendation or terminate this Agreement pursuant to Section 9.01(f) and describing in reasonable detail the terms and conditions of such Superior Proposal, including a copy of the offer or proposal that constitutes the Superior Proposal; and
(2) Parent does not, within five (5) Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make a written offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner adverse that the Company Board (or a committee thereof) determines in its good faith judgment, after consulting with a financial advisor of nationally recognized reputation and outside legal counsel, to CIG and be at least as favorable to the NBCU EntitiesCompany’s stockholders as such Superior Proposal; provided, however, that, during the Notice Period, the approval or recommendation by Company shall negotiate in good faith with Parent (to the Board or extent Parent desires to negotiate) regarding any Revised Transaction Proposal; provided, further, that any amendment to the material terms of such committee Superior Proposal during the Notice Period shall require a new written notice of the Transaction Agreements to which terms of such amended Superior Proposal from the Company is a party and the Transactionan additional two (2) Business Day Notice Period, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactionto the Company’s obligations to negotiate in good faith with Parent.
(de) The parties acknowledge Nothing contained in this Agreement shall prohibit the Company or the Company Board from (i) disclosing to its stockholders a position contemplated by Rules 14d-9 and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 14e-2(a) promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) making any disclosure to its stockholders if the Company Board determines in its good faith judgment, after consulting with its outside legal counsel, that a failure to make such disclosure would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law; provided, however, that (1) in no event shall this Section 7.01(e) affect the obligations specified in Section 7.01(d) and (2) any such disclosure (other than issuance by the Company of a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that addresses or relates to the approval, recommendation or declaration of advisability by the Company Board with respect to this Agreement or a Competing Company Transaction shall be deemed to be a Change in the Company Board Recommendation unless the Company Board in connection with such communication publicly states that its recommendation with respect to this Agreement has not changed or refers to the prior recommendation of the Company Board, without disclosing any Change in the Company Board Recommendation.
Appears in 2 contracts
Samples: Merger Agreement (CSS Industries Inc), Merger Agreement (Ig Design Group Americas, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willits Subsidiaries shall, and that it will shall use its reasonable best efforts to cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectly, : (i) solicitencourage, initiate initiate, solicit or encourage take any other action designed to, or which could reasonably be expected to, facilitate an Acquisition Proposal or the making, submission or announcement of, any Acquisition Proposal, (including by way of furnishing ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information)information with respect to, or take any other action to facilitate, facilitate any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, constitutes or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing TransactionAcquisition Proposal, (iii) agree toengage in discussions with any person with respect to any Acquisition Proposal, approve except to notify such person as to the existence of these provisions, (iv) approve, endorse or endorse recommend any Competing Transaction Acquisition Proposal with respect to it, or (v) enter into any letter of intent or other Contract similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Competing Transaction Acquisition Proposal or a transaction contemplated thereby; provided, that so long as there has been no breach of this Section 5.5(a), the Company may, in response to an Acquisition Proposal that was not solicited after the date hereof and otherwise in compliance with the obligations under Section 5.5(c), participate in discussions or negotiations with, request clarifications from, or furnish information to, any person which makes such Acquisition Proposal if (ivA) authorize such action is taken subject to a confidentiality agreement containing customary terms and conditions; provided, that if such confidentiality agreement contains provisions that are less restrictive than the comparable provisions of the Confidentiality Agreement, or permit omits restrictive provisions contained in the Confidentiality Agreement, then the Confidentiality Agreement shall be deemed to be automatically amended to contain in substitution for such comparable provisions such less restrictive provisions, or to omit such restrictive provisions, as the case may be, and in connection with the foregoing, the Company agrees not to waive any of the officersprovisions in any such confidentiality agreement without waiving the similar provisions in the Confidentiality Agreement to the same extent, directors or employees of (B) the Company Board reasonably determines in good faith, after consultation with outside legal counsel (which may be its current outside legal counsel) and financial advisor (which may be its current outside financial advisor), that such Acquisition Proposal could reasonably be expected to lead to a Superior Proposal and (C) the Company Board reasonably determines in good faith, after consultation with outside legal counsel (which may be its current outside legal counsel), that failure to take such actions would constitute a breach of fiduciary duties under applicable Law. The Company shall immediately terminate, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to immediately terminate, all discussions or negotiations, if any, with any third party with respect to, or any that could reasonably be expected to lead to an Acquisition Proposal. The Company shall immediately request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to immediately return or destroy (which destruction shall be certified in writing by such person to the Company) all confidential information heretofore furnished to such person or its Representatives.
(b) Neither the Company Board nor any committee thereof shall (i) withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Recommendation or (ii) resolve to do any of the foregoing; provided, that the Company Board may withdraw, modify or amend the Company Recommendation if, following receipt of a Superior Proposal (A) the Company has complied with its obligations under this Section 5.5, (B) the Company Board reasonably determines in good faith, after consultation with outside legal counsel (which may be its current outside legal counsel), that failure to take any such action. The actions would constitute a breach of fiduciary duties under applicable Law and (C) prior to taking such actions, the Company Board shall have given Parent at least five (5) business days notice of its intention to take such action and the opportunity to meet with the Company and its outside counsel and financial advisor.
(c) In addition to the obligations set forth in Section 5.5(a), the Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if business day) advise Parent of any proposal request for information with respect to any Acquisition Proposal or offerof any Acquisition Proposal, or any inquiry inquiry, proposal, discussions or contact with any Person negotiation with respect theretoto any Acquisition Proposal, regarding a Competing Transaction is made, specifying the material terms and conditions thereof of such request, Acquisition Proposal, inquiry, proposal, discussion or negotiation, and the Company shall, within one (1) business day of the receipt thereof, promptly provide to Parent copies of any written materials received in connection with any of the foregoing, and the identity of the party person making any such Acquisition Proposal or such request, inquiry or proposal or offer with whom any discussions or inquiry or contact negotiations are taking place. The Company shall keep Parent reasonably informed of the status and material details (including material amendments or proposed material amendments). The ) with respect to the information previously provided by the Company shallin connection with an Acquisition Proposal, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives provide to Parent within one (including, without limitation, any investment banker, attorney or accountant retained 1) business day of receipt thereof all written materials received by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transactionthereto. The Company shall not release promptly provide to Parent any Person from, or waive non-public information concerning it provided to any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement other person in connection with its consideration any Acquisition Proposal, which was not previously provided to Parent. With respect to any Acquisition Proposal that constitutes a Superior Proposal, for a period of acquiring five (whether by merger5) business days after such determination, acquisition of stock or assets or otherwise) the Company or any Subsidiaryshall, if anyrequested by Parent, negotiate in good faith to return (or if permitted by revise this Agreement so that Parent has the applicable confidentiality agreement, destroy) all confidential information heretofore furnished opportunity to such Person by or on behalf of make an offer that the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, determine in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be at least as favorable to the Company’s regularly engaged outside legal counsel), that, in light of stockholders as such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The Nothing contained in this Agreement shall be deemed to restrict the parties acknowledge and agree that nothing contained herein shall affect from complying with Rules 14d-9 or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 14e-2 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Sorrento Networks Corp), Merger Agreement (Zhone Technologies Inc)
No Solicitation of Transactions. (a) Prior to the execution of this Agreement, the Company, through its investment bankers, has engaged in an auction process in which participants were offered an opportunity to submit their best offers to purchase the Company. The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willwill not, and that it will cause instruct its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectlyinitiate, (i) solicit, initiate solicit or encourage (including by way of furnishing nonpublic informationinformation or assistance) any Competing Transaction (as defined below), or take enter into or maintain discussions or negotiate with any other action person in furtherance of or relating to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutesobtain a Competing Transaction, or may reasonably be expected agree to lead to, or endorse any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees Representative of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, subsidiaries to take any such action, and the Company shall use its reasonable best efforts to cause the Representatives of the Company and its subsidiaries not to take any such action; provided, however, that nothing contained in this Section 6.10 shall prohibit the Board of Directors of the Company prior to stockholder approval of the Merger from (i) furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited bona fide proposal regarding a Competing Transaction, if, and only to the extent that, (A) the Board of Directors of the Company, after consultation with independent legal counsel, determines in good faith that such action is required for the Board of Directors of the Company to comply with its fiduciary duties to stockholders under applicable law and (B) prior to furnishing such information to such person, the Company receives from such person an executed confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement; or (ii) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Competing Transaction. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, advise Purchaser if any such proposal or offer, or any inquiry or contact made with any Person person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in For purposes of this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Agreement "Competing Transaction" shall mean any of the following involving the Company or any of its subsidiaries: (a) any merger, and consolidation, business combination, or other similar transaction (other than the Board has (iMerger) determined, which results in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be sale of the Company’s regularly engaged ; (b) any sale or other disposition outside legal counsel), that, the ordinary course of business of 30% or more of the fair market value of the assets (other than assets held in light inventory for resale and other than the licensing of such Superior Proposal, the furnishing Company's programming in the ordinary course of such information or entering into discussions is required to comply with its fiduciary obligations to business) of the Company and its stockholders under applicable Lawsubsidiaries, (iii) provided written notice to CIG and the NBCU Entities taken as a whole, in a single transaction or series of its intent to furnish information transactions; or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw tender offer or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee exchange offer for more than 50% of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactionoutstanding Shares.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (All American Communications Inc), Merger Agreement (Pearson Merger Co Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Notwithstanding anything to the contrary contained in this Agreement but subject to Section 7.3(e) and Section 7.3(g), during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on December 31, 2016 (the directors“Go Shop Period End Time”), officers or employees of it or any Subsidiary willREIT I, the REIT I Subsidiaries and that it will cause its their respective Representatives may and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not shall have the right to, directly or indirectly, : (i) initiate, solicit, initiate encourage or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, facilitate any inquiries or the making of any proposal proposal, offer or offer (including, without limitation, any proposal or offer to its stockholders) other action that constitutes, or may reasonably be expected to lead to, any Competing TransactionAcquisition Proposal, including by way of (A) contacting third parties, (B) broadly disseminating public disclosure or (C) providing access to the properties, offices, assets, books, records and personnel of REIT I and the REIT I Subsidiaries and furnishing non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided, however, that REIT I has previously or contemporaneously furnished, made available or provided access to such non-public information to REIT II; (ii) enter into into, continue or maintain or continue otherwise participate in any discussions or negotiations with any Person relating to, or in furtherance of such inquiries, proposals, offers or other actions or to obtain, an Acquisition Proposal; (iii) release any Person from, or refrain from enforcing, any standstill agreement or similar obligation to REIT I or any of the REIT I Subsidiaries; and (iv) disclose to the stockholders of REIT I any information required to be disclosed under applicable Law; provided, however, that in the case of this clause (iv), to the extent any such disclosure addresses the approval, recommendation or declaration of advisability by the REIT I Board with respect to this Agreement or an Acquisition Proposal, such disclosure shall be deemed to be an Adverse Recommendation Change (as defined in Section 7.3(b) below) if not accompanied by an express public re-affirmation of the REIT I Board Recommendation. For purposes of this Agreement, the term “Go Shop Bidder” shall mean any Person (including its controlled Affiliates and Representatives) that submits a proposal or offer regarding an Acquisition Proposal not later than the Go Shop Period End Time that has not been withdrawn and that the REIT I Special Committee determines prior to the Go Shop Period End Time (or in the case of any Acquisition Proposal received less than five (5) Business Days before the date of the Go Shop Period End Time, not later than five (5) Business Days after the Go Shop Period End Time), has resulted in, or would be reasonably expected to result in, a Superior Proposal (as defined below) (such Person, a “Go Shop Bidder”); provided, that a Go Shop Bidder shall cease to be a Go Shop Bidder if the negotiations between REIT I and such Go Shop Bidder with respect to the Acquisition Proposal that resulted in such Go Shop Bidder becoming a Go Shop Bidder shall have been terminated. No later than two (2) Business Days after the Go Shop Period End Time, REIT I shall notify REIT II in writing of the identity of each Go Shop Bidder and provide to REIT II (x) a copy of any related Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to REIT I or any REIT I Subsidiary and (y) a written summary of the material terms of any related Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally).
(b) Except as permitted by, and subject to, Section 7.3(c), Section 7.3(d) and Section 7.3(e), and except with respect to a Go Shop Bidder, from and after the Go Shop Period End Time, REIT I shall not, and shall cause each of the REIT I Subsidiaries not to, and shall not authorize or permit any of its or their Representatives to, (i) initiate, solicit, knowingly encourage or facilitate any inquiries or the making of any proposal, offer or other action that constitutes any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations with any Person, or furnish to any Person other than a REIT II Party or their Representatives, any non-public information, in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transactionan Acquisition Proposal, (iii) agree torelease any Person from or fail to enforce any standstill agreement or similar obligation to REIT I or any REIT I Subsidiary, approve (iv) withdraw, modify or amend the REIT I Board Recommendation in any manner adverse to REIT II or fail to make the REIT I Board Recommendation or fail to include the REIT I Board Recommendation in the Proxy Statement, (v) approve, endorse or recommend any Competing Transaction Acquisition Proposal (any event described in clause (iv) or this clause (v), whether taken by the REIT I Board or a committee thereof, an “Adverse Recommendation Change”), (vi) enter into any letter of intent agreement in principle, arrangement, understanding, contract or other Contract agreement (whether binding or not) contemplating or otherwise relating to any Competing Transaction an Acquisition Proposal, or (ivvii) authorize take any action to exempt any Person from any Takeover Statute or permit any similar restrictive provision of the officers, directors or employees REIT I Organizational Documents. In furtherance of the Company foregoing, REIT I shall, and shall cause (i) each REIT I Subsidiary and (ii) each Representative of REIT I and the REIT I Subsidiaries to, immediately cease any discussions, negotiations or communications with any Person with respect to any Acquisition Proposal or potential Acquisition Proposal (other than as permitted by Section 7.3(a) or 7.3(c)) and shall immediately terminate all physical and electronic data room access previously granted to any such person. REIT I agrees that in the event any Representative of REIT I or any REIT I Subsidiary takes any action that, if taken by REIT I or a REIT I Subsidiary, would constitute a material violation of this Section 7.3(b), then REIT I shall be deemed to be in violation of this Section 7.3(b) for all purposes of this Agreement.
(c) At any time prior to the date that is five (5) Business Days after the Go Shop Period End Time, the REIT I Board may, if the REIT I Board determines in good faith after consultation with its legal advisor (and based on the recommendation of the REIT I Special Committee) that failing to do so would be inconsistent with the directors’ duties under applicable Law, upon receipt by REIT I of an Acquisition Proposal from a Go Shop Bidder that constitutes a Superior Proposal, give notice of its Subsidiariesintention to terminate this Agreement pursuant to Section 9.1(c)(ii) and enter into an agreement related to such Superior Proposal, provided, that:
(i) REIT I has notified REIT II in writing that the REIT I Board intends to enter into an agreement relating to such Superior Proposal, attaching the most current version of such agreement (including any amendments, supplements or modifications) to such notice (a “REIT I Notice of Intention”); and
(ii) during the five (5) Business Day period following REIT II’s receipt of a REIT I Notice of Intention, REIT I shall have offered to negotiate with (and, if accepted, negotiated in good faith with), and shall have caused its respective financial and legal advisors to offer to negotiate with (and, if accepted, negotiate in good faith with), REIT II in making adjustments to the terms and conditions of this Agreement such that the Superior Proposal ceases to be a Superior Proposal; provided, that any investment bankeramendment, financial advisor, attorney, accountant supplement or other representative retained by the Company or modification to any of its Subsidiaries, to take Acquisition Proposal shall be deemed a new Acquisition Proposal and REIT I may not enter into any such action. The Company Superior Proposal pursuant this Section 7.3(c) unless REIT I has complied with the requirements of this Section 7.3(c) with respect to such Acquisition Proposal including sending a REIT I Notice of Intention (except that the new negotiation period under this Section 7.3(c) shall notify CIG and be three (3) Business Days instead of five (5) Business Days).
(d) At any time beginning on the NBCU Entities as promptly as practicable sixth (and in any event within one (16th) Business Day after the Company attains knowledge thereof)Go Shop Period End Time and prior to receipt of the Stockholder Approvals, orally and in writingthe REIT I Board may, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement REIT I Board determines in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its legal advisor (and based on the recommendation of the REIT I Special Committee) that the failure to do so would be inconsistent with the directors’ duties under applicable Law, upon receipt by the REIT I of an Acquisition Proposal that constitutes a Superior Proposal (whether or not from a Go Shop Bidder), make an Adverse Recommendation Change; provided, that:
(i) Such Acquisition Proposal (1) did not result from REIT I’s material breach of its obligations under this Section 7.3, and (2) the REIT I Board has determined in good faith, after consultation with its legal and financial advisoradvisors (and based on the recommendation of the REIT I Special Committee), that such proposal or offer Acquisition Proposal constitutes or is reasonably likely to constitute a Superior ProposalProposal and, (ii) determined, in its good faith judgment after consultation with outside its legal counsel (who may advisor, that the failure of REIT I to make an Adverse Recommendation Change would be inconsistent with the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders directors’ duties under applicable Law, taking into account all adjustments to the terms of this Agreement that may be offered by REIT II pursuant to Section 7.3(d)(iii);
(ii) REIT I has notified REIT II in writing that the REIT I Board intends to make an Adverse Recommendation Change (a “Adverse Recommendation Change Notice”); and
(iii) provided written notice to CIG and during the NBCU Entities five (5) Business Day period following REIT II’s receipt of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement and any related agreements Adverse Recommendation Change Notice REIT I shall not include any provision calling for any exclusive right have offered to negotiate with (and, if accepted, negotiated in good faith with), and shall have caused its respective financial and legal advisors to offer to negotiate with (and, if accepted, negotiate in good faith with), REIT II in making adjustments to the terms and conditions of this Agreement such party that in circumstances involving or having relating to an Acquisition Proposal, the effect Superior Proposal ceases to be a Superior Proposal; provided that any change in the consideration offered or any other material amendment, supplement or modification to any Acquisition Proposal shall be deemed a new Acquisition Proposal and REIT I may not make an Adverse Recommendation Change unless REIT I has complied with the requirements of prohibiting this Section 7.3(d) with respect to each such new Acquisition Proposal including sending an Adverse Recommendation Change Notice with respect to each such new Acquisition Proposal (except that the Company from satisfying its obligations new negotiation period under the Transaction Agreements this Section 7.3(d)(iii) shall be three (3) Business Days instead of five (5) Business Days). Notwithstanding anything in this Section 7.3(d)(iii), REIT II’s rejection of REIT I’s offer to which it is a party)negotiate pursuant to this Section 7.3(d)(iii) shall not have any bearing on REIT II’s right to terminate this Agreement pursuant to Section 9.1(d)(ii) herein.
(ce) Except as otherwise provided Nothing in this AgreementSection 7.3 or elsewhere in this Agreement shall prevent the REIT I Board or REIT I, neither directly or indirectly, from (i) taking and disclosing to the stockholders of REIT I a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect to an Acquisition Proposal, making any required disclosure to the stockholders of REIT I under applicable Law, including Rule 14d-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A or (ii) making any disclosure to the stockholders of REIT I if the REIT I Board nor determines in good faith after consultation with its legal advisors (and based on the recommendation of the REIT I Special Committee) that the failure to do so would be inconsistent with the directors’ duties under applicable Law; provided, however, that to the extent any committee thereof shall withdraw such disclosure addresses the approval, recommendation or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation declaration of advisability by the REIT I Board with respect to this Agreement or any an Acquisition Proposal, such committee disclosure shall be deemed to be an Adverse Recommendation Change if not accompanied by an express public re-affirmation of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing TransactionREIT I Board Recommendation.
(df) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Moody National REIT I, Inc.), Agreement and Plan of Merger (Moody National REIT II, Inc.)
No Solicitation of Transactions. (a) The During the Pre-Closing Period, the Company agrees shall, and shall cause the Company Subsidiaries and the Company Representatives (other than Company Representatives that neither it nor any Subsidiary nor any of the are not directors, officers or employees of it or any Subsidiary willemployees, which the Company shall instruct and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiaryuse commercially reasonable efforts to cause) not to, directly or indirectly, (i) cease and cause to be terminated any existing solicitation, encouragement, discussion or negotiation with any Third Party that may be ongoing with respect to an Acquisition Proposal, and (ii) request any such Third Party to promptly comply with its obligations under the applicable confidentiality agreement to return or destroy all confidential information concerning the Company and the Company Subsidiaries. Subject to Section 5.4(b), during the Pre-Closing Period, the Company shall not, and shall cause the Company Subsidiaries and the Company Representatives (other than Company Representatives that are not directors, officers or employees, which the Company shall instruct and use commercially reasonable efforts to cause) not to (x) solicit, initiate initiate, or knowingly facilitate or encourage (including by way of furnishing nonpublic information)any inquiry, or take any other action to facilitatediscussion, any inquiries or the making of any offer, proposal or offer (including, without limitation, any proposal or offer to its stockholders) request that constitutes, or may could reasonably be expected to lead to, any Competing Transactionan Acquisition Proposal, (iiy) engage in, enter into into, continue or maintain or continue otherwise participate in any discussions or negotiations with with, or furnish any Person in furtherance of such inquiries non-public information relating to the Company or to obtain a proposal or offer for a Competing Transaction, (iii) agree any Company Subsidiary to, approve or endorse any Competing Transaction afford access to the books or enter into any letter of intent records or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees officers of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitationSubsidiary to, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore Third Party with respect to a Competing Transaction. The Company shall not release an Acquisition Proposal or (z) otherwise knowingly facilitate any Person from, effort or waive any provision of, any confidentiality or standstill agreement attempt to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiarymake an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Section 10.055.4(a), at any time following the date hereof and prior to adoption of this Agreement by the Exchange Offer Closing or the Exchange Offer ExpirationRequired Company Stockholder Approval, as applicablebut not after, the Board Company may (x) furnish non-public information to, and enter into discussions with, to a Person Third Party in response to a request therefor by such Third Party who has made an unsolicited, written, a bona fide proposal written Acquisition Proposal that did not result from a violation of this Section 5.4, providing for the acquisition of over 50% of the assets (on a consolidated basis) or offer regarding a Competing Transactionmajority of the voting power of the Equity Interests of the Company or (y) engage in discussions or negotiations with such Third Party with respect to such an Acquisition Proposal; provided that (1) prior to so furnishing such information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement, (2) any non-public information concerning the Company or any Company Subsidiary made available to any Third Party shall, to the extent not previously made available to Parent, be made available to Parent as promptly as reasonably practicable (and in no event later than twenty-four hours) after it is made available to such Third Party, (3) prior to taking the action described in clauses (x) or (y) above, the Company Board has (i) determineddetermines in good faith, in its good faith judgment (after consultation with its financial advisor)and outside legal advisors, that such proposal action is reasonably necessary in order for such directors to comply with the directors’ fiduciary duties under applicable Law and (4) in each such case referred to in clauses (x) or offer (y) above, the Company Board has determined in good faith based on the information then available and after consultation with its financial advisor that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to constitute result in a Superior Proposal. Notwithstanding anything to the contrary set forth in Section 5.4 or elsewhere in this Agreement, the Company, the Company Subsidiaries and their Representatives may, in any event, contact any Third Party to (A) seek to clarify and understand the terms and conditions of any inquiry or proposal made by such Third Party following the date hereof solely to determine whether such inquiry or proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and (iiB) determinedinform such Third Party that has made or, in its good faith judgment after consultation with outside legal counsel (who may be to the Knowledge of the Company’s regularly engaged outside legal counsel), that, in light is considering making an Acquisition Proposal of such Superior Proposal, the furnishing provisions of such information or entering into discussions is required to comply with its fiduciary obligations to this Section 5.4; provided that the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities shall notify Parent of its intent intention to furnish information or enter into discussions with contact such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right Third Party prior to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which it is a party)doing so.
(c) Except as otherwise provided in expressly permitted by this AgreementSection 5.4(c), neither the Company Board nor any committee thereof shall withdraw (i) withdraw, withhold, change, amend, modify or modifyqualify, or otherwise propose publicly to withdraw withdraw, withhold, change, amend, modify or modifyqualify, in a manner adverse to CIG and the NBCU EntitiesParent, the approval or recommendation by the Company Board or any such committee of the Transaction Agreements Recommendation, (ii) fail to which include the Company is a party and Board Recommendation in the TransactionProxy Statement, including the Tender Offer and the Reverse Stock Split, or (iii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal made or received after the date hereof (any of the actions described in clauses (i) through (iii) of this Section 5.4(c), an “Adverse Recommendation Change”), or (iv) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or obligation other definitive agreement (other than an Acceptable Confidentiality Agreement in accordance with Section 5.4(b)) with respect toto any Acquisition Proposal (an “Alternative Acquisition Agreement”). Notwithstanding anything to the contrary set forth in this Agreement, at any Competing Transactiontime prior to the receipt of the Required Company Stockholder Approval, but not after, the Company Board shall be permitted, subject to compliance with Section 5.4(d), (x) to terminate this Agreement to concurrently enter into a definitive Alternative Acquisition Agreement pursuant to Section 7.1(e) and/or (y) to effect any Adverse Recommendation Change with respect to a Superior Proposal or an Intervening Event, if the Company Board determines in good faith, after consultation with its financial and outside legal advisors, that such action is reasonably necessary in order for such directors to comply with the directors’ fiduciary duties under applicable Law.
(d) The parties acknowledge Company Board shall not be entitled to effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(e) unless (i) with respect to an Acquisition Proposal, such Acquisition Proposal was not solicited, initiated, encouraged or facilitated in breach of this Agreement and agree the Company Board determines in good faith, based on the information then available and after consultation with its financial advisor, that nothing contained herein such Acquisition Proposal constitutes a Superior Proposal, (ii) the Company has provided written notice (a “Notice of Adverse Recommendation Change”) to Parent that the Company intends to take such action, which notice includes, as applicable, (x) written notice of the material terms of the Superior Proposal which enabled the Company Board to make the determination that the Acquisition Proposal is a Superior Proposal, or (y) in the case of any Adverse Recommendation Change that is related to an Intervening Event, a reasonably detailed summary of the basis of such action, (iii) during the four (4) calendar day period following Parent’s receipt of the Notice of Adverse Recommendation Change, the Company shall, and shall affect cause the Company Subsidiaries and the Company Representatives (other than Company Representatives that are not directors, officers or employees, which the Company shall instruct and use commercially reasonable efforts to cause) to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal or, in the case of any way interfere Intervening Event, as would permit the Company Board (consistent with its fiduciary duties under applicable Law) to not make an Adverse Recommendation Change; and (iv) following the Company’s Obligation end of the four (4) calendar day period, the Company Board shall have determined in good faith, after consultation with its financial and outside legal advisors, taking into account any changes to this Agreement irrevocably offered in writing by Parent in response to the Notice of Adverse Recommendation Change or otherwise, that the Superior Proposal, as the case may be, giving rise to the Notice of Adverse Recommendation Change continues to constitute a Superior Proposal or, in the case of any Adverse Recommendation Change that is related to an Intervening Event, that such Adverse Recommendation Change would be reasonably necessary in order for the directors to comply with Rule 14d-9 such directors’ fiduciary duties under applicable Law. In the Exchange Actevent of any material amendment of such Superior Proposal or any material change to the facts and circumstances relating to the Intervening Event, the Company shall be required to issue a new Notice of Adverse Recommendation Change or otherwise comply again with the requirements of this Section 5.4(d); provided, however, that for purposes of this sentence, references to the four (4) calendar day period above shall be deemed to be references to a three (3) calendar day period.
(e) As promptly as reasonably practicable (and in any event within twenty four (24) hours) after receipt of any Acquisition Proposal or any request for non-public information or inquiry that would reasonably be expected to lead to an Acquisition Proposal, the Company shall provide Parent with written notice of the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the Person or group of Persons making any such Acquisition Proposal, request or inquiry. In addition, the Company shall provide Parent as promptly as reasonably practicable (and in any event within twenty four (24) hours) with written notice setting forth all such information as is reasonably necessary to keep Parent reasonably informed in all material respects of all oral or written communications regarding, and the status and material details (including material amendments or proposed material amendments) of, any such Acquisition Proposal, request or inquiry.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board, directly or indirectly through its Representatives, from complying with its disclosure obligations under U.S. federal or state Law with regard to an Acquisition Proposal; provided, however, such disclosure will in no way eliminate or modify the effect that any action pursuant to such U.S. federal or state Law would otherwise have under this Agreement.
(g) From the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article 7, the Company shall not terminate, amend, modify or waive any provision of any confidentiality, “standstill” or similar agreement to which the Company or any Company Subsidiary is a party and shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be permitted to terminate, amend, modify, waive or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Company Board determines in good faith, after consultation with its outside legal counsel, that such action is reasonably necessary in order for the directors to comply with such directors’ fiduciary duties under applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (B. Riley Financial, Inc.), Merger Agreement (United Online Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIII, the Seller and the Seller Subsidiaries will not, nor any Subsidiary nor will they authorize or permit any of the their respective officers, directors, officers affiliates or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant other advisor or representative retained by it or any Subsidiary) not of them to, directly or indirectly, :
(i) solicit, initiate initiate, encourage or encourage induce the making, submission or announcement of any Acquisition Proposal,
(including by way of furnishing nonpublic information)ii) participate in any discussions or negotiations regarding, or furnish to any person any material non-public information with respect to, or take any other action to facilitate, facilitate any inquiries inquiry or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, constitutes or may reasonably be expected to lead to, any Competing Acquisition Proposal, or
(iii) enter into any contract, agreement, letter of intent or other arrangement relating to any Acquisition Transaction: provided, however, this Section 4.4(a) shall not prohibit the Seller or the Seller’s Board of Directors from:
(A) furnishing material nonpublic information (other than information regarding the Company supplied to the Seller by the Company) regarding the Seller or the Seller Subsidiaries to, or entering into a customary confidentiality agreement with or entering or re-entering into discussions with, any person or group in response to an Acquisition Proposal submitted by such person or group (and not withdrawn) if (x) the Seller’s Board of Directors reasonably determines in good faith that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Offer, and (y) the Seller’s Board of Directors concludes in good faith, after consultation with its outside legal counsel, that failure to take such action is reasonably likely to result in a breach by the Seller’s Board of Directors of its fiduciary obligations to the Seller’s stockholders under applicable Laws, provided that in any such case neither the Seller nor any representative of the Seller and the Seller Subsidiaries shall have violated any of the restrictions set forth in this Section 4.4(a), or
(B) taking the actions described in subsections (b) or (c), below, as permitted thereby, provided that neither the Seller, the Seller Subsidiaries nor any representatives of the Seller and the Seller Subsidiaries shall have violated any of the restrictions set forth in this Section 4.4(a). At least five (5) days prior to furnishing any material nonpublic information to, or entering into discussions or negotiations with, any person or group, the Seller shall:
(i) give the Company written notice of the identity of such person or group and of the Seller’s intention to furnish material nonpublic information to, or enter into discussions or negotiations with, such person or group, and
(ii) enter into receive from such person or maintain group an executed confidentiality agreement containing customary limitations on the use and disclosure of all written and oral nonpublic information furnished to such person or continue group by or on behalf of the Seller, and contemporaneously with furnishing any such information to such person or group, the Seller shall furnish such information to the Company (to the extent such information has not been previously furnished by the Seller to the Company). Nothing in this Section 4.4(a) shall prevent the Seller or the Seller’s Board of Directors from complying with Rules 14e-2 and 14d-9 promulgated under the Exchange Act with regard to an Acquisition Proposal. The Seller and the Seller Subsidiaries will immediately cease, as of the date hereof, any and all existing activities, discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating parties conducted heretofore with respect to any Competing Transaction Acquisition Proposal, subject to the right to renew such activities, discussions or (iv) authorize negotiations in accordance with this Section 4.4. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 4.4 by any officer or permit director of the Seller or any of the officers, directors Seller Subsidiaries or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it other advisor or representative of the Seller or any Subsidiary) to, immediately cease and cause of the Seller Subsidiaries shall be deemed to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration breach of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted this Section 4.4 by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any SubsidiarySeller.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Gold Banc Corp Inc), Merger Agreement (Marshall & Ilsley Corp/Wi/)
No Solicitation of Transactions. (a) The Company agrees that neither it From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIII, the Seller and the Seller Subsidiaries will not, nor any Subsidiary nor will they authorize or permit any of the their respective officers, directors, officers Affiliates or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant other advisor or representative retained by it or any Subsidiary) not of them to, directly or indirectly, :
(i) solicit, initiate initiate, encourage or encourage induce the making, submission or announcement of any Acquisition Proposal;
(including by way of furnishing nonpublic information)ii) participate in any discussions or negotiations regarding, or furnish to any Person any material non-public information with respect to, or take any other action to facilitate, facilitate any inquiries inquiry or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, constitutes or may reasonably be expected to lead to, any Competing Transaction, Acquisition Proposal; or
(iiiii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction Acquisition Transaction; provided, however, this Section 4.4(a) shall not prohibit the Seller or the Seller’s Board of Directors from:
(ivA) authorize furnishing material nonpublic information (other than information regarding the Company supplied to the Seller by the Company) regarding the Seller or permit the Seller Subsidiaries to, or entering into a customary confidentiality agreement with or entering or re-entering into discussions with, any Person in response to an Acquisition Proposal submitted by such Person (and not withdrawn) if (x) the Seller’s Board of Directors reasonably determines in good faith, after taking into consideration the advice of and consultation with an investment banking firm of national reputation (which includes the Seller’s current financial advisor), that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Offer, and (y) the Seller’s Board of Directors concludes in good faith, after consultation with its outside legal counsel, that failure to take such action is reasonably likely to result in a breach by the Seller’s Board of Directors of its fiduciary obligations to the Seller’s stockholders under applicable Laws, provided that in any such case neither the Seller nor any representative of the Seller and the Seller Subsidiaries shall have violated any of the officersrestrictions set forth in this Section 4.4(a), directors or employees or
(B) taking the actions described in the proviso of subsection (c), below, as permitted thereby, provided that none of the Company Seller, the Seller Subsidiaries or any representatives of its Subsidiariesthe Seller and the Seller Subsidiaries shall have violated any of the restrictions set forth in this Section 4.4(a). At least ten (10) days prior to furnishing any material nonpublic information to, or entering into discussions or negotiations with, any investment bankerPerson, financial advisor, attorney, accountant or other representative retained by the Seller shall:
(i) give the Company or any written notice of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of such Person and of the party making such proposal or offer or inquiry or contact (including Seller’s intention to furnish material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) nonpublic information to, immediately cease and cause to be terminated any or enter into discussions or negotiations with any with, such Person; and
(ii) receive from such Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore an executed a confidentiality agreement in connection with its consideration containing customary limitations on the use and disclosure of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential written and oral nonpublic information heretofore furnished to such Person by or on behalf of the Company or Seller, and contemporaneously with furnishing any Subsidiary.
(b) Notwithstanding anything such information to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicablesuch Person, the Board may Seller shall 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 has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent extent such information has not been previously furnished by the Seller to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a partyCompany).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (United Heritage Bankshares of Florida Inc), Merger Agreement (Marshall & Ilsley Corp/Wi/)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its Subsidiaries and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) shall direct the Company’s Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Person parties (other than Parent, Merger Sub and Parent’s Representatives) that may have been conducted heretofore be ongoing as of the date of this Agreement with respect to a Competing Transactionan Alternative Proposal. The Company shall not, and shall cause each of its Subsidiaries and shall direct the Company’s Representatives not release to, directly or indirectly, (i) solicit, initiate or knowingly encourage or facilitate any Person fromAlternative Proposal, (ii) enter into any agreement or agreement in principle with respect to an Alternative Proposal or enter into any agreement requiring the Company to abandon, terminate or fail to consummate the Merger or breach its obligations under this Section 4.3, (iii) engage in, participate in or continue in any way any negotiations or discussions regarding, or waive furnish or disclose to any provision ofthird party any information with respect to, any Alternative Proposal or (iv) provide access to its properties, books or records or furnish any information to any person with respect to any Alternative Proposal; provided, however, that at any time prior to obtaining the Company Stockholder Approval, in response to an unsolicited written Alternative Proposal that the Special Committee or the Company Board (A) reasonably believes is bona fide and (B) determines in good faith, after consultation with a financial advisor of nationally recognized reputation, constitutes, or could reasonably be expected to lead to, a Superior Proposal, the Company may, subject to compliance with Section 4.3(b), (x) furnish information with respect to the Company and its Subsidiaries to the person making such Alternative Proposal (and its Representatives) pursuant to an executed confidentiality agreement that contains provisions which are no less favorable to the Company than those contained in the Confidentiality Agreement; provided that all such information have previously been made available to Parent or standstill agreement is made available to which Parent prior to, or concurrently with, the time it is a party provided to such person, and (y) participate in discussions with or negotiations with the person making such Alternative Proposal (and its Representatives) regarding such Alternative Proposal. Notwithstanding the foregoing, nothing in this Section 4.3(a) shall prohibit the Company from contacting and engaging in discussions with any person who has made an unsolicited bona fide written Alternative Proposal after the date of this Agreement solely for the purpose of clarifying such Alternative Proposal and any material terms, and the Company also agrees conditions to promptly request each Person that has heretofore executed consummation, thereof so as to determine whether it could be reasonably expected for such Alternative Proposal to lead to a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any SubsidiarySuperior Proposal.
(b) Notwithstanding anything The Company shall promptly, and in any event within forty-eight (48) hours, advise Parent orally and in writing of the Company’s receipt of any Alternative Proposal or any inquiry that would reasonably be expected to lead to any Alternative Proposal, the identity of the person making any such Alternative Proposal and a copy of such Alternative Proposal (or, where no such copy is available, a written description of the principal terms and conditions thereof) prior to furnishing any information or participating in any discussions permitted by this Section 4.3 with respect to such Alternative Proposal. The Company shall (i) keep Parent reasonably informed of the status (including any change to the contrary terms and conditions thereof) of any such Alternative Proposal and (ii) provide to Parent promptly after receipt or delivery thereof, and in any event within forty-eight (48) hours, with copies of all written correspondence and other written material sent by the Company or any Representative to, or provided to the Company or any Representative from, any person in connection with any Alternative Proposal. Promptly upon determination by the Special Committee or the Company Board that an Alternative Proposal constitutes a Superior Proposal in accordance with Section 4.3(a), the Company shall deliver to Parent a written notice advising it that the Special Committee or the Company Board has made such determination, specifying the material terms and conditions of such Superior Proposal and the identity of the person making such Superior Proposal.
(i) As used in this Section 10.05Agreement, “Alternative Proposal” shall mean any proposal or offer made by any person prior to the Exchange Offer Closing or receipt of the Exchange Offer Expiration, as applicable, the Board may furnish information to, and enter into discussions with, Company Stockholder Approval (other than a Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Board has by Parent or any of its Subsidiaries) for (i) determineda merger, in its good faith judgment (after consultation with its financial advisor)reorganization, that such proposal share exchange, consolidation, business combination, recapitalization, dissolution, liquidation or offer constitutes or is reasonably likely to constitute a Superior Proposalsimilar transaction involving the Company, (ii) determined, in its good faith judgment after consultation with outside legal counsel the acquisition by any person of fifteen percent (who may be 15%) or more of the Company’s regularly engaged outside legal counsel), that, in light assets of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable LawSubsidiaries, taken as a whole or (iii) provided written notice to CIG and the NBCU Entities acquisition by any person of its intent to furnish information fifteen percent (15%) or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee more of the Transaction Agreements to which the outstanding shares of Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing TransactionCommon Stock.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Merisel Inc /De/), Merger Agreement (American Capital Strategies LTD)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directorsshall not, officers directly or employees of it or any Subsidiary willindirectly, and that it will shall cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Company Competing Transaction, (ii) or enter into or maintain or continue discussions or negotiations negotiate with any Person person in furtherance of such inquiries or to obtain a proposal or offer for a Company Competing Transaction, (iii) or agree to, approve to or endorse any Company Competing Transaction Transaction, or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors Company's Representatives or employees of the Company or any of its Subsidiariessubsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative Representative retained by the Company or any of its SubsidiariesCompany's subsidiaries, to take any such action; provided, however, that nothing contained in this Section 6.04 shall prohibit the board of directors of Company (i) from complying with Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.04 or (ii) prior to receipt of the approval by the stockholders of Company of this Agreement and the Merger from providing information (subject to a confidentiality agreement at least as restrictive as the Confidentiality Agreement) in connection with, and negotiating, another unsolicited, bona fide written proposal regarding a Company Competing Transaction that (i) Company's board of directors shall have concluded in good faith, after considering applicable state law, on the basis of advice of independent outside counsel of nationally recognized reputation, that failure to take such action would not be a proper exercise of the Company's board of directors' fiduciary duties to Company's stockholders under applicable law, (ii) if any cash consideration is involved, shall not be subject to any financing contingency, and with respect to which Company's board of directors shall have determined in the proper exercise of its fiduciary duties to Company's stockholders that the acquiring party is capable of consummating such Company Competing Transaction on the terms proposed, and (iii) Company's board of directors shall have determined (based upon the opinion of Company's independent financial advisors of nationally recognized reputation) in the proper exercise of its fiduciary duties to Company's stockholders that such Company Competing Transaction provides greater value to the stockholders of Company than 39 the Merger (and Company's independent financial advisors of nationally recognized reputation opine in writing that such Company Competing Transaction is superior from a financial point of view) (any such Company Competing Transaction being referred to herein as a "Company Superior Proposal"). The Company shall notify CIG and the NBCU Entities as Parent promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person person with respect thereto, regarding a Company Competing Transaction is made, specifying the material terms and conditions thereof and such notice to include the identity of the party person making such proposal or offer or proposal, offer, inquiry or contact (including material amendments or proposed material amendments). The Company shallcontact, and the terms of such Company Competing Transaction. Company immediately shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Company Competing Transaction. The Company shall not release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiaryparty.
(b) Notwithstanding anything Parent shall not, directly or indirectly, and shall cause its Representatives not to, directly or indirectly, solicit, initiate or encourage (including by way of furnishing nonpublic information), any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to the contrary its stockholders) that constitutes, or may reasonably be expected to lead to, any Parent Competing Transaction, or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain a Parent Competing Transaction, or agree to or endorse any Parent Competing Transaction, or authorize or permit any of Parent's Representatives or subsidiaries, or any Representative retained by Parent's subsidiaries, to take any such action; provided, however, that nothing contained in this Section 10.05, 6.04 shall prohibit the board of directors of Parent (i) from complying with Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.04 or (ii) prior to receipt of the Exchange Offer Closing or approval by the Exchange Offer Expiration, stockholders of Parent of this Agreement and the Merger from providing information (subject to a confidentiality agreement at least as applicable, restrictive as the Board may furnish information toConfidentiality Agreement) in connection with, and enter into discussions withnegotiating, a Person who has made an another unsolicited, written, bona fide written proposal or offer regarding a Parent Competing Transaction, and the Board has Transaction that (i) determinedParent's board of directors shall have concluded in good faith, in its good faith judgment (after consultation with its financial advisor)considering applicable state law, on the basis of advice of independent outside counsel of nationally recognized reputation, that failure to take such proposal or offer constitutes or is reasonably likely action would not be a proper exercise of the Parent's board of directors' fiduciary duties to constitute a Superior ProposalParent's stockholders under applicable law, (ii) determinedif any cash consideration is involved, shall not be subject to any financing contingency, and with respect to which Parent's board of directors shall have determined in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light proper exercise of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations duties to Parent's stockholders that the Company acquiring party is capable of consummating such Parent Competing Transaction on the terms proposed, and its stockholders under applicable Law, (iii) provided written Parent's board of directors shall have determined (based upon the opinion of Parent's independent financial advisors of nationally recognized reputation) in the proper exercise of its fiduciary duties to Parent's stockholders that such Parent Competing Transaction provides greater value to the stockholders of Parent than the Merger (and Parent's independent financial advisors of nationally recognized reputation opine in writing that such Parent Competing Transaction is superior from a financial point of view) (any such Parent Competing Transaction being referred to herein as a "Parent Superior Proposal"). Parent shall notify Company promptly if any proposal or offer, or any inquiry or contact with any person with respect thereto, regarding a Parent Competing Transaction is made, such notice to CIG include the identity of the person making such proposal, offer, inquiry or contact, and the NBCU Entities terms of its intent such Parent Competing Transaction. Parent immediately shall cease and cause to furnish information be terminated all existing discussions or enter into discussions negotiations with such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement and any related agreements parties conducted heretofore with respect to a Parent Competing Transaction. Parent shall not include release any third party from, or waive any provision calling for of, any exclusive right to negotiate with such party confidentiality or having the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements standstill agreement to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Multex Com Inc), Agreement and Plan of Merger and Reorganization (Multex Com Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will the Company shall cause its and its Subsidiaries’ their respective directors, officers, employees, agents, investment bankers, attorneys, accountants, other advisors and other or representatives (includingsuch persons, without limitationtogether with Subsidiaries, any investment bankercollectively, attorney or accountant retained by it or any Subsidiarythe “Company Representatives”) not to, directly or indirectly, to (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic non-public information), or take any other action to facilitate, any inquiries or knowingly facilitate the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing TransactionAcquisition Proposal, (ii) enter into into, continue or maintain otherwise engage or continue participate in any discussions or negotiations regarding, or furnish to any person, any non-public information with respect to, or otherwise knowingly cooperate, encourage or facilitate any Person in furtherance of such inquiries effort or attempt to obtain a make or implement any proposal or offer for a Competing Transactioninquiry that constitutes, or could reasonably be expected to result in, an Acquisition Proposal, (iii) agree toapprove, approve endorse or recommend, or propose publicly to approve, endorse or recommend, any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction Acquisition Proposal, or (iv) authorize or permit any of the officers, directors or employees of the Company or any submit to a vote of its Subsidiariesstockholders, approve, endorse or recommend, or publicly announce an intention to approve, endorse or recommend, or enter into, any investment bankerletter of intent, financial advisoragreement in principle, attorneymerger agreement, accountant acquisition agreement, option agreement amalgamation agreement, scheme of arrangement or other representative retained by the Company or similar agreement relating to any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable Acquisition Proposal (and other than a Qualifying Confidentiality Agreement in any event within one (1) Business Day after the Company attains knowledge thereofaccordance with Section 7.05(b), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and immediately shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transactionan Acquisition Proposal. The Company shall not, and shall cause its Subsidiaries not to, release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party, and will immediately take all steps necessary to terminate any express approval that may have heretofore been given under any such confidentiality or standstill agreements authorizing any third party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiarymake an Acquisition Proposal.
(b) Notwithstanding anything to the contrary in this Section 10.057.05, if the Company or any of the Company Representatives receives an unsolicited written Acquisition Proposal from any person or group of persons at any time prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicableCompany Stockholder Meeting, the Board Company and Company Representatives may furnish information to(i) contact such person or group of persons to clarify the terms and conditions thereof, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal (ii) if the Company Board (or offer regarding a Competing Transaction, and the Board any committee thereof) has (iA) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged financial advisors and outside legal counsel), thatthat such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and (B) obtained from such person a Qualifying Confidentiality Agreement, furnish information to, and enter into discussions and negotiations with, such person or group of persons; provided, that the Company shall have provided written notice to BioSante of its intent to furnish information or enter into discussions or negotiations with such person or group of persons at least two (2) business days prior to taking any such action.
(c) Promptly (but in light no event more than one (1) business day) following receipt thereof, the Company shall advise BioSante in writing of the receipt of any Acquisition Proposal, or the receipt of any inquiry, or of any request to enter into, continue or otherwise engage or participate in any discussions or negotiations, with respect to any Acquisition Proposal and, to the extent not inconsistent with the terms of any confidentiality obligations existing as of the date of this Agreement, a summary of the material terms and conditions of such Acquisition Proposal and the Company shall promptly provide to BioSante a copy of any Acquisition Proposal made in writing provided to the Company and copies of any written materials received by the Company in connection therewith. The Company agrees that it shall keep BioSante reasonably informed of the status of any discussions or negotiations with respect to any Acquisition Proposal. The Company agrees that it shall simultaneously provide to BioSante any non-public information concerning the Company that may be provided (pursuant to Section 7.05(b)) to any other person or group of persons in connection with any Acquisition Proposal which was not previously provided to BioSante.
(d) Notwithstanding anything to the contrary contained in Section 7.02 or this Section 7.05, at any time prior to the Company Stockholder Approval, if the Company has received a Superior Proposal (after giving effect to the terms of any revised offer by BioSante pursuant to this Section 7.05(d)), the Company Board may (x) in connection with such Superior Proposal, make a Change in Company Recommendation or (y) terminate this Agreement for the furnishing purpose of causing the Company to enter into an acquisition agreement with respect to such Superior Proposal (provided that the Company shall have paid the Termination Fee prior to or concurrently with such termination of this Agreement in accordance with Section 9.03(b)), which the Company shall enter into concurrently with or immediately following such termination, if the Company Board has determined in good faith, after consultation with the Company’s financial advisors and outside counsel, that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary obligations to the Company and its stockholders under applicable Law and the Company’s certificate of incorporation; provided, however, that if the Change in Company Recommendation pursuant to clause (x) or the termination of this Agreement pursuant to clause (y) is to be effected as a result of a Superior Proposal, then the Company Board may not take the actions set forth in clause (x) or (y), as the case may be, unless:
(i) the Company shall have provided prior written notice to BioSante at least five (5) business days in advance (the “Notice Period”) of its intention to take such actions, which notice shall advise BioSante that the Company Board has received a Superior Proposal, specify the material terms and conditions of such information Superior Proposal and indicate that the Company Board intends to effect a Change in Company Recommendation or entering into discussions is required terminate this Agreement and the manner in which it intends (or may intend) to take such action (a “Notice of Superior Proposal”), and
(ii) during the Notice Period, the Company shall, and shall cause its financial advisors and outside counsel to, negotiate with BioSante in good faith (to the extent BioSante desires to and in fact does negotiate in good faith) to make such revisions to the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute (in the reasonable judgment of the Company Board) a Superior Proposal. If during the Notice Period any material revisions are made to the Superior Proposal, the Company shall deliver a new written notice to BioSante specifying the details of any such revisions and shall comply with the requirements of this Section 7.05(d) with respect to such new written notice, except that the new Notice Period shall be two (2) business days. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or offer for an Acquisition Proposal or otherwise in order to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG Law and the NBCU Entities Company’s certificate of its intent to furnish information incorporation or enter into discussions with such Person and (ivRule 14d-9 or 14e-2(a) obtained from such Person an executed confidentiality agreement promulgated under the Exchange Act will not constitute a violation of this Agreement (it being understood that such confidentiality agreement a mere “stop, look and any related agreements listen” disclosure shall not include any provision calling for any exclusive right to negotiate with such party or having constitute a Change in Company Recommendation). Any Change in Company Recommendation shall not change the effect approval of prohibiting the Company from satisfying its obligations under Board for purposes of causing any state law to be inapplicable to the Transaction Agreements to which it is a party)transactions contemplated hereby.
(ce) Except as otherwise provided Notwithstanding Section 7.05(d), at any time prior to the Company Stockholder Approval, the Company Board may, other than in this Agreementresponse to a Superior Proposal, neither make a Change in Company Recommendation if the Company Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modifydetermines, in a manner adverse its good faith judgment prior to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee time of the Transaction Agreements Company Stockholder Meeting and after consultation with outside legal counsel, that failure to which make a Change in Company Recommendation would be inconsistent with the directors’ exercise of their fiduciary obligations to the Company is a party and the Transaction, including the Tender Offer its stockholders under applicable Law and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation certificate of incorporation, in which event the Company Board may make a Change in Company Recommendation, but only after (i) providing written notice to comply BioSante advising BioSante of its intention to make a Change in Company Recommendation at least five (5) calendar days prior to effecting such Change in Company Recommendation and (ii) negotiating, and causing its financial advisors and outside counsel to negotiate, with Rule 14d-9 BioSante in good faith during such five (5)-day period (to the extent BioSante desires to and in fact does negotiate in good faith) to make such adjustments in the terms and conditions of this Agreement so that the failure to make a Change in Company Recommendation would no longer be inconsistent with the directors’ exercise of their fiduciary obligations to the Company and its stockholders under applicable Law and the Exchange ActCompany’s certificate of incorporation.
Appears in 2 contracts
Samples: Merger Agreement (Cell Genesys Inc), Merger Agreement (Biosante Pharmaceuticals Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the Each party to this Agreement shall not, directly or indirectly, and shall instruct its officers, directors, officers employees, subsidiaries, agents or employees of it advisors or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) it), not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action knowingly to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) or enter into or maintain or continue discussions or negotiations negotiate with any Person person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) or agree to, approve to or endorse any Competing Transaction Transaction, or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company such party or any of its Subsidiariessubsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company such party or any of its Subsidiariessuch party's subsidiaries, to take any such action; provided, however, that nothing contained in this Section 6.06 shall prohibit the board of directors of CGI or STC from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer or (ii) after receiving the advice of outside counsel to the effect that the board of directors of STC or CGI, as the case may be, is required to do so in order to discharge properly its fiduciary duties, considering, negotiating and approving and recommending to the shareholders of STC or CGI, as the case may be, an unsolicited bona fide written acquisition proposal which (A) was not received in violation of this Section 6.06, (B) if executed or consummated would be a Competing Transaction, (C) is not subject to financing and (D) the board of directors of STC or CGI, as the case may be, determines in good faith, after consultation with its financial advisors, would result in a transaction more favorable to STC's or CGI's stockholders, as the case may be, than the transaction contemplated by this Agreement (any such acquisition proposal, a "Superior Proposal"). The Company Each party hereto shall notify CIG and the NBCU Entities as other parties hereto promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person person with respect thereto, regarding such an acquisition proposal or a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the . Each party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and hereto immediately shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transaction. The Company None of the parties hereto shall not release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. Each party hereto shall use its best efforts to ensure that its officers, directors, employees and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether subsidiaries and any investment banker or other advisor or representative retained by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf party are aware of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary restrictions described in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)6.06.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Cell Genesys Inc), Merger Agreement (Cell Genesys Inc)
No Solicitation of Transactions. (a) The Subject to Section 5.4(b), from and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 7, the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willshall not, and that it will shall cause its the Company Subsidiaries and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) the Company Representatives not to, directly or indirectly, : (i) solicitinitiate, initiate solicit or knowingly facilitate or encourage (including without limitation by way of furnishing nonpublic providing information)) the submission of any inquiries, proposals or take offers or any other action to facilitate, any inquiries efforts or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) attempts that constitutesconstitute, or may reasonably be expected to lead to, any Competing TransactionAcquisition Proposal or engage in any discussions or negotiations with respect thereto, (ii) enter into approve or maintain recommend, or continue discussions publicly propose to approve or negotiations with recommend, any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing TransactionAcquisition Proposal, (iii) agree towithdraw, approve change, amend, modify or endorse qualify, or propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent or the Purchaser, or otherwise make any Competing Transaction statement or proposal inconsistent with, the Company Board Recommendation, (iv) enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar Contract relating to an Acquisition Proposal or enter into any letter of intent Contract or other Contract relating agreement in principle requiring the Company to any Competing Transaction abandon, terminate or breach its obligations hereunder or fail to consummate the transactions contemplated hereby, or (ivv) authorize resolve, propose or permit agree to do any of the officersforegoing (any action or failure to act set forth in the foregoing clauses (ii), directors (iii) or employees (v) (to the extent related to the foregoing clauses (ii) or (iii)), a “Change of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such actionBoard Recommendation”). The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions solicitation, encouragement, discussion or negotiations negotiation with any Person that may have been Persons conducted heretofore prior to the execution of this Agreement by the Company, the Company Subsidiaries or any of the Company Representatives with respect to a Competing Transaction. The Company shall not release any Person from, Acquisition Proposal and cause to be returned or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) destroyed all confidential information heretofore furnished to such Person provided by or on behalf of the Company or any SubsidiaryCompany Subsidiary to such Person to the extent that the Company is entitled to have such documents returned or destroyed.
(b) Notwithstanding anything to the contrary contained in this Section 10.055.4(a), if at any time following the date hereof and prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has Acceptance Time (i) determinedthe Company has received a bona fide written Acquisition Proposal from a third party, (ii) the Company has not breached this Section 5.4 in its any material respect, (iii) the Company Board determines in good faith judgment (faith, after consultation with its financial advisor)advisors and outside counsel, that such proposal or offer Acquisition Proposal constitutes or is reasonably likely to constitute result in a Superior Proposal and (iv) after consultation with its outside counsel, the Company Board determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable law, then the Company may (A) furnish information with respect to the Company and the Company Subsidiaries to the Person making such Acquisition Proposal and (B) participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal; provided that the Company (x) shall notify Parent orally and in writing within 24 hours of any determination concerning an Acquisition Proposal pursuant to this Section 5.4(b), (y) will not, and will not allow the Company Subsidiaries and the Company Representatives to, disclose any information to such Person without first entering into an Acceptable Confidentiality Agreement and (z) will promptly provide to Parent any information concerning the Company or the Company Subsidiaries provided to such other Person which was not previously provided to Parent.
(c) The Company shall promptly notify Parent in writing of any Acquisition Proposal (and in no event later than 24 hours following the Company’s, any Company Subsidiary’s or any Company Representative’s receipt of the Acquisition Proposal) such notice to include the identity of the Person making such Acquisition Proposal and a copy of such Acquisition Proposal, including draft agreements or term sheets submitted in connection therewith (or, where no such copy is available, a reasonably detailed description of such Acquisition Proposal), including any modifications thereto. The Company shall keep Parent reasonably informed on a current basis (and in any event at Parent’s request and otherwise no later than 24 hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any Acquisition Proposal and shall provide Parent with copies of all written inquiries and correspondence with respect to such Acquisition Proposal no later than 24 hours following the receipt thereof. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any Contract with any Person subsequent to the date of this Agreement, and neither the Company nor any of the Company Subsidiaries is party to any Contract, in each case, that prohibits the Company from providing such information to Parent. The Company shall not, and shall cause the Company Subsidiaries not to, terminate, waive, amend or modify any provision of, or grant permission under, any standstill or confidentiality Contract to which the Company or any Company Subsidiary is a party, and the Company shall, and shall cause the Company Subsidiaries to, enforce the provisions of any such agreement; provided, however, that notwithstanding the foregoing or any other provision of this Agreement, the Company may grant a waiver of a standstill or similar agreement if it determines in good faith, after consultation with outside counsel and financial advisors that such waiver is likely to lead to a Superior Proposal.
(d) Notwithstanding anything to the contrary contained in Section 5.4(a), if the Company receives an Acquisition Proposal which the Company Board concludes in good faith, after consultation with outside counsel and its financial advisors, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms of this Agreement which may be offered by Parent (including without limitation pursuant to clause (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counselbelow), thatthe Company Board may at any time prior to the Acceptance Time, (x) effect a Change of Board Recommendation with respect to such Superior Proposal and/or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless substantially concurrently with such termination the Company pays the Breakup Fee and otherwise complies with the provisions of Section 7.1(e) and Section 7.2; and provided further that the Company Board may not withdraw, modify or amend the Company Board Recommendation in light a manner adverse to Parent pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) unless (A) the Company shall not have breached this Section 5.4 and (B):
(i) the Company shall have provided prior written notice to Parent, at least three Business Days in advance (the “Notice Period”), of its intention to take such action with respect to such Superior Proposal, which notice shall specify the material terms and conditions of such Superior Proposal (including without limitation the identity of the party making such Superior Proposal), and shall have contemporaneously provided a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and other material documents, including without limitation the definitive agreement with respect to such Superior Proposal (the “Alternative Acquisition Agreement”); and
(ii) prior to effecting such Change of Board Recommendation or terminating this Agreement to enter into a definitive agreement with respect to such Superior Proposal, the furnishing Company shall, and shall cause the Company Representatives to, during the Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such information or entering into discussions is Acquisition Proposal ceases to constitute a Superior Proposal. In the event of any material revisions to the Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.4(d) with respect to such new written notice.
(e) Notwithstanding anything to the contrary contained in Section 5.4(a), if the Company Board determines in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its fiduciary obligations duties to the stockholders of the Company and its stockholders under applicable Law, (iii) the Company Board may at any time prior to the Acceptance Time and solely in response to an Intervening Event effect a Change of Board Recommendation; provided, however, that the Company Board may not effect a Change of Board Recommendation unless the Company shall have provided prior written notice to CIG and the NBCU Entities Parent, at least three Business Days in advance, of its intent intention to furnish information or enter into discussions take such action, which notice shall specify the facts, circumstances and other conditions giving rise thereto, and prior to effecting such Change of Board Recommendation, the Company shall, and shall cause the Company Representatives to, during such three Business Day period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such Person adjustments in the terms and (iv) obtained from such Person an executed confidentiality agreement (it being understood conditions of this Agreement so that such confidentiality agreement a Change of Board Recommendation is no longer necessary; and any related agreements provided, further, that the Company Board shall not include be permitted to effect a Change in Recommendation pursuant to this Section 5.4(e) with respect to or in connection with any provision calling for any exclusive right Acquisition Proposal (which shall be covered by and subject in all respects to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which it is a partySection 5.4(d)).
(cf) Except as otherwise provided The Company agrees that any material violation of the restrictions set forth in this Agreement, neither Section 5.4 by any of the Board nor any committee thereof Company Representatives shall withdraw or modify, or propose be deemed to withdraw or modify, in be a manner adverse to CIG and the NBCU Entities, the approval or recommendation material breach of this Agreement (including without limitation this Section 5.4) by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing TransactionCompany.
(dg) The parties acknowledge Nothing contained in this Section 5.4 shall prohibit the Company Board from disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 promulgated under the Exchange Act; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, an express rejection of any applicable Acquisition Proposal or an express reaffirmation of its recommendation to its stockholders in favor of the Offer shall be deemed to be a Change of Board Recommendation.
Appears in 2 contracts
Samples: Merger Agreement (Lilly Eli & Co), Merger Agreement (Imclone Systems Inc)
No Solicitation of Transactions. (a) The From the date hereof until the earlier of (i) May 31, 2012 and (ii) the Closing, the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toshall not, directly or indirectly, (i) contact, initiate, solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue conduct any discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transactionnegotiations, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officersContract, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying to the material terms and conditions thereof and the identity direct or indirect sale of all or any portion of its assets out of the party making such proposal ordinary course of business, or offer a merger or inquiry consolidation of the Company with any other Person; provided, however, that nothing contained in this Agreement shall prohibit or contact (including material amendments otherwise restrict the Company from initiating, soliciting, entering into or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated conducting any discussions or negotiations with negotiations, or entering into any Person that may have been conducted heretofore Contract, with respect to a Competing Transaction. The Company shall not release the sale or other disposition of any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any SubsidiaryCompany’s assets located in India.
(b) Notwithstanding anything The Company shall, as promptly as practicable, advise ILDE of its receipt of any Acquisition Proposal and of the material terms of any proposal or inquiry, including the identity of the Person making the same, that it may receive in respect of such Acquisition Proposal, and shall keep ILDE informed on a reasonably prompt basis with respect to any material developments with respect to the contrary foregoing.
(c) Notwithstanding the restrictions set forth in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor4.7(a), that such proposal or offer if the Company receives an Acquisition Proposal which was not solicited in violation of Section 4.7(a) and which constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation then the Company shall promptly provide ILDE written notice that complies with outside legal counsel (who may be the Company’s regularly engaged outside legal counselSection 4.7(b), that, in light . Following receipt of such Superior Proposalnotice by ILDE, the furnishing of such Company may (x) furnish information or entering into discussions is required to comply with its fiduciary obligations respect to the Company and its stockholders Subsidiaries to the Person making such Superior Proposal pursuant to a customary confidentiality agreement and (y) participate in discussions with respect to such Superior Proposal; provided, that the Company Board determines in good faith that failure to participate in such discussions or negotiations, furnish such information or take such other actions would constitute a breach of the Company Board’s fiduciary duties under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(cd) Except as otherwise provided in this Agreement, neither Neither the Company Board nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to CIG and the NBCU EntitiesILDE, the approval or recommendation by the Company Board or any such committee of the Transaction Agreements to which issuance of the shares of Company is a party Common Stock and Warrants and the Transaction, including grant of the Tender Offer right to purchase Units pursuant to this Agreement and the Reverse Stock Splitmatters to be considered at the Stockholders’ Meeting (any such action, or approve or recommendan “Adverse Recommendation Change”); provided, or cause or permit the Company to enter into any letter of intenthowever, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein in this Agreement shall affect prohibit the Company or the Company Board from (x) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act if the Company Board determines, in any way interfere with good faith, that it would otherwise constitute a breach of its fiduciary duties to its stockholders under applicable Law to not take and disclose such position, (y) in the event that a Superior Proposal is made and the Company Board determines in good faith that it would otherwise constitute a breach of its fiduciary duties to the Company’s Obligation stockholders under applicable Law, making an Adverse Recommendation Change or (z) otherwise making any required disclosure to comply with Rule 14d-9 the Company’s stockholders if, in the good faith judgment of the Company Board, the failure to do so would reasonably be expected to violate its fiduciary duties under the Exchange Actapplicable Law or such disclosure is required under applicable Law.
Appears in 2 contracts
Samples: Securities Purchase and Exchange Agreement (Geoglobal Resources Inc.), Securities Purchase and Exchange Agreement (Israel Land Development Company- Energy Ltd.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Subject to Section 7.04(c), none of the directorsCompany, officers or employees of it the Operating Partnership or any other Subsidiary willshall, and that nor shall it will cause its and its Subsidiaries’ agentsauthorize, advisors and other representatives (including, without limitationdirectly or indirectly, any investment bankerRepresentative of the Company, attorney or accountant retained by it the Operating Partnership or any Subsidiary) not other Subsidiary to, directly or indirectly, (i) solicit, initiate solicit or encourage knowingly facilitate (including by way of furnishing nonpublic information), information or take any other action to facilitate, assistance) any inquiries with respect to, or the making of any proposal or offer (including, without limitationof, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing TransactionAcquisition Proposal, (ii) enter into or maintain or continue discussions or negotiations negotiate with any Person in furtherance of such inquiries or to obtain a proposal an Acquisition Proposal or offer for a Competing Transactionrelease any Person from any standstill agreement or similar obligation to the Company or any Subsidiary other than the automatic termination of standstill obligations pursuant to the terms of agreements as in effect as of the date hereof, by virtue of the execution and announcement of this Agreement or otherwise, (iii) agree towithdraw, approve modify or amend the Company Recommendation in any manner adverse to any Buyer Party, or fail to make the Company Recommendation (any event described in this clause (iii), a “Change in Recommendation”), (iv) approve, endorse or recommend any Competing Transaction Acquisition Proposal, or (v) enter into any letter of intent agreement in principle, arrangement, understanding, contract or other Contract agreement relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments)an Acquisition Proposal. The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives to, immediately cease and cause to be terminated any discussions discussions, negotiations or negotiations communications with any Person that may have been conducted heretofore party or parties with respect to a Competing Transaction. any Acquisition Proposal; provided, however, that nothing in this Section 7.04 shall preclude the Company, the Operating Partnership or their respective Representatives from contacting any such party or parties solely for the purpose of complying with the provisions of the last sentence of this Section 7.04(a).
(b) The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees Operating Partnership shall promptly, and in any event within forty-eight hours after receipt, notify Parent of the receipt of (i) an Acquisition Proposal, (ii) any request for information relating to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any SubsidiarySubsidiaries (other than requests for information unrelated to an Acquisition Proposal) or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal, if anywhich any director, to return (executive officer or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf trustee of the Company or any Subsidiaryfinancial advisor, investment banker or attorney for the Company may receive after the date hereof. Such notification shall include, to the extent then known, the identity of the parties and a copy of such Acquisition Proposal, inquiry or request or, if not made in writing, a summary written description thereof. The Company and the Operating Partnership shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such proposal, indication, inquiry or request. None of the Company or any Subsidiary shall, after the date of this Agreement, enter into any confidentiality agreement that would prohibit them from providing such information to Parent. The Company shall not, and shall not permit any Subsidiary to, terminate, waive, amend or modify any provision of any existing standstill or confidentiality agreement to which the Company or any Subsidiary is a party, in each case relating to an Acquisition Proposal.
(bc) Notwithstanding anything Subject to the contrary in Company Parties’ compliance with the provisions of this Section 10.057.04, and only prior to the Exchange Offer Closing Company Shareholder Approval, following the receipt by the Company or the Exchange Offer Expiration, as applicableany Subsidiary of a written Acquisition Proposal, the Company Board may furnish information to, (directly or through Representatives) (I) contact such Person and enter into discussions with, a Person who has made an unsolicited, written, bona fide its advisors solely for the purpose of clarifying the proposal or offer regarding a Competing Transaction, and any material terms thereof and the Board has (i) determinedconditions to consummation, in its good faith judgment (after consultation with its financial advisor), that such so as to determine whether the proposal or offer constitutes or for an Acquisition Proposal is reasonably likely to constitute result in a Superior Proposal and (II) if the Company Board determines in good faith following consultation with its legal and financial advisors that such Acquisition Proposal is reasonably likely to result in a Superior Proposal, the Company Board thereafter may (i) furnish non-public information with respect to the Company and the Subsidiaries to the Person who made such proposal (provided that the Company (A) has previously or concurrently furnished such information to Parent and (B) shall furnish such information pursuant to a confidentiality agreement which is at least as favorable to the Company as the Confidentiality Agreement), (ii) participate in negotiations regarding such proposal, (iii) following receipt of a written Acquisition Proposal that constitutes a Superior Proposal, (iix) determined, in its good faith judgment after consultation with outside legal counsel (who may be recommend that the Company’s regularly engaged outside legal counsel), thatshareholders approve such Superior Proposal and, in light of such Superior Proposalconnection therewith, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided Change in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.Recommendation and
Appears in 2 contracts
Samples: Merger Agreement (Eop Operating LTD Partnership), Merger Agreement (Eop Operating LTD Partnership)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toCompany shall, directly or indirectly, through any officer, director, employee, representative, agent or otherwise (collectively, "REPRESENTATIVES"), (i) solicit, initiate or take any action intended to encourage the submission of any Acquisition Proposal, or (including by ii) participate in any discussions or negotiations regarding, or furnish to any person, any information with respect to, or otherwise cooperate in any way of furnishing nonpublic information)with respect to, or assist or participate in, or take any other action intended to facilitate, any inquiries facilitate or the making of any proposal or offer (including, without limitationencourage, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments)an Acquisition Proposal. The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Person parties that may have been conducted heretofore be ongoing with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any SubsidiaryAcquisition Proposal.
(b) Notwithstanding anything to the contrary in this first sentence of Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable7.05(a), the Board Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, and enter into discussions with, a Person who has made any person in response to an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Board has unsolicited Acquisition Proposal by such person if (i) determined, in its good faith judgment (after consultation the Company has complied with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposalthe terms of this Section 7.05, (ii) determined, a majority of the Board determines in its good faith judgment that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal and, after consultation with outside legal counsel counsel, that the failure to take such action could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, (who may be the Company’s regularly engaged outside legal counsel)iii) such person executes, that, in light prior to receipt of any of such Superior Proposalinformation, a confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement, (iv) the Company provides reasonable notice to Parent that it is furnishing of such information to, or entering into discussions is required or negotiations with, such person and provides in any such notice to comply with its fiduciary obligations to Parent in reasonable detail the identity of the person making such Acquisition Proposal and the terms and conditions of such Acquisition Proposal, and (v) the Company and its stockholders under applicable Law, (iii) promptly furnishes to Parent copies of any nonpublic information provided written notice to CIG and the NBCU Entities of its intent such person that has not previously been furnished to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)Parent.
(c) Except as otherwise provided set forth in this AgreementSection 7.05, neither the Board nor any committee thereof shall withdraw (i) withhold, withdraw, amend, change or modify, or propose to withdraw withhold, withdraw, amend, change or modify, in a manner adverse to CIG and the NBCU EntitiesParent or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Transaction Agreements Offer, the Merger or any other Transaction, (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, the Board shall be permitted (i) not to recommend to its shareholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii) to withdraw, or modify in a manner adverse to Parent, its recommendation to its shareholders referred to in Section 2.02 hereof, (iii) approve or recommend any Superior Proposal or (iv) terminate this Agreement and in connection therewith enter into an agreement with respect to such Superior Proposal, but, in each case, only if (w) the Company has complied with the terms of this Section 7.05, (x) the Company has received an Acquisition Proposal which a majority of the Board determines in good faith constitutes a Superior Proposal, (y) a majority of the Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action could reasonably be deemed to be inconsistent with its fiduciary duties under applicable law, and (z) no such action is taken earlier than the third (3rd) full business day following Parent's receipt of written notice of the intention of the Board to do so.
(d) The Company shall promptly advise Parent orally (within one (1) business day) and in writing (within two (2) business days) of (i) any Acquisition Proposal or any request for information with respect to any Acquisition Proposal, the material terms and conditions of -40- such Acquisition Proposal or request and the identity of the person making such Acquisition Proposal or request and (ii) any changes in any such Acquisition Proposal or request.
(e) Nothing contained in this Section 7.05 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders, if the Board determines in good faith that it is required to do so under applicable federal securities law or the Delaware Law after consultation with outside legal counsel.
(f) The Company agrees, except as approved by a majority of the Board as being required by the Board's fiduciary duties under applicable law after consultation with outside legal counsel, and after giving Parent the notice required by paragraph (c)(z) above, not to release any third party from, or waive any provision of, any standstill agreement or any material provision of any confidentiality agreement to which the Company is a party relating to an Acquisition Proposal or other proposed transaction.
(g) Notwithstanding Section 7.05(a), but subject to the other terms and conditions of this Agreement, at any time on or after May 13, 2002, and prior to the TransactionAppointment Time, including the Tender Offer and the Reverse Stock SplitCompany may, upon delivery of written notice to Purchaser, solicit, initiate, or approve participate in discussions or recommend, negotiations regarding (or cause provide information in connection with) the acquisition by any person or permit persons that is not a competitor of Parent or the Company to (as determined by Parent in its reasonable judgment) of equity securities of the Company representing not more than 40% of the equity securities of the Company (calculated on a fully diluted basis as though such proposed issuance had already occurred); PROVIDED, HOWEVER, that (i) the Company shall not enter into any letter of intentcontract, agreement or obligation with arrangement in respect toof any such proposed equity issuance, any Competing Transaction.
(dii) The parties acknowledge and agree that nothing contained herein shall affect or prior to engaging in any way interfere such discussions or negotiations, or providing any such information, the Company shall have entered into a confidentiality agreement with such person or persons on terms no less favorable to the Company’s Obligation to comply with Rule 14d-9 under Company than those contained in the Exchange ActConfidentiality Agreement, and (iii) no single person or group of persons would, if the transactions contemplated by such discussions or negotiations were consummated, acquire more than 15% of the equity securities of the Company (calculated on a fully diluted basis as though such proposed issuance had already occurred).
Appears in 2 contracts
Samples: Merger Agreement (Bei Medical Systems Co Inc /De/), Merger Agreement (Bei Medical Systems Co Inc /De/)
No Solicitation of Transactions. (a) The Except as otherwise permitted by this Section 6.4, each of the Company and Parent agrees that neither it shall not, nor any Subsidiary nor shall it permit any of the directors, officers or employees of it or any Subsidiary willits Subsidiaries to, and that it will shall cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectly, : (i) solicit, initiate initiate, encourage, facilitate or encourage induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (including by way it being understood and agreed that nothing in this clause (i) shall be deemed to restrict in any manner the operation of furnishing either party’s business, or that of its subsidiaries, in the ordinary course of business), (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information)information with respect to, or take any other action to facilitate, facilitate any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, Acquisition Proposal (it being understood and agreed that nothing in this clause (ii) enter into shall be deemed to restrict in any manner the operation of either party’s business, or maintain or continue discussions or negotiations with any Person that of its Subsidiaries, in furtherance the ordinary course of such inquiries or to obtain a proposal or offer for a Competing Transactionbusiness), (iii) agree toengage in discussions with any person with respect to any Acquisition Proposal, approve except to notify such person as to the existence of these provisions, (iv) approve, adopt, endorse or endorse recommend to its stockholders or any Competing Transaction other person any Acquisition Proposal with respect to it, or (v) enter into any letter of intent or other Contract relating similar document or any agreement, commitment or understanding providing for or contemplating any Acquisition Proposal or a transaction contemplated thereby. Except as permitted by Section 6.4(c) hereof and subject to any Competing Transaction or (iv) authorize or permit any of the officerscompliance with its terms, directors or employees each of the Company and Parent shall immediately terminate, and shall cause its Subsidiaries and its and its Subsidiaries’ Representatives to terminate immediately, all discussions or negotiations, if any, with any third party with respect to, or any that would reasonably be expected to lead to an Acquisition Proposal. Each of the Company and Parent shall immediately demand that each person which has heretofore executed a confidentiality agreement with it or any of its SubsidiariesAffiliates (for all purposes of references to Affiliates in this sentence, excluding Xxxx Capital, Inc. and its Affiliates and Bear, Xxxxxxx & Co. Inc. and its Affiliates) or Subsidiaries or any investment bankerof its or its Affiliates’ or Subsidiaries’ Representatives since January 1, financial advisor2002 with respect to such person’s consideration of a possible Acquisition Proposal (which definition, attorneyfor the purposes of this sentence only, accountant shall substitute for each reference to “80%” and “20%” appearing therein, “75%” and “25%”, respectively) to immediately return or other representative retained destroy (and have such destruction certified in writing by such person to such party hereunder) all confidential information heretofore furnished by such party or any of its Affiliates or Subsidiaries or any of its or its Affiliates’ or Subsidiaries’ Representatives to such person or any of such person’s Affiliates or Subsidiaries or any of such person’s or such person’s Affiliates’ or Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal.
(b) Promptly, but in any event within twenty-four (24) hours, after receipt of any Acquisition Proposal by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offerParent, or any request for nonpublic information or inquiry or contact which it reasonably believes would reasonably be expected to lead to an Acquisition Proposal, such party shall provide the other party with any Person with respect thereto, regarding a Competing Transaction is made, specifying written notice of the material terms and conditions thereof of such Acquisition Proposal, request or inquiry, and the identity of the party person or group making any such proposal Acquisition Proposal, request or offer inquiry, and a copy of all written materials provided in connection with such Acquisition Proposal, request or inquiry. After receipt of the Acquisition Proposal, request or inquiry by the Company or contact Parent, as the case may be, it shall promptly keep the other party hereunder informed in all material respects of the status and details (including material amendments or proposed material amendments). The Company shall) of any such Acquisition Proposal, request or inquiry and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by promptly provide to it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement copy of all written materials subsequently provided in connection with its consideration of acquiring such Acquisition Proposal, request or inquiry.
(whether by mergerc) If, acquisition of stock or assets or otherwise) prior to the Company or any Subsidiary, if any, to return (or if permitted by Stockholders Meeting in the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf case of the Company or any Subsidiary.
Parent Stockholders Meeting in the case of Parent, (bx) Notwithstanding anything to either the contrary Company or Parent receives an Acquisition Proposal (for purposes of the procedures set forth in this Section 10.056.4(c), any Acquisition Proposal received prior to the Exchange Offer Closing or date hereof and which is still outstanding as of the Exchange Offer Expiration, as applicable, date hereof shall be deemed to have been received immediately after execution and delivery hereof and any amendment to the Board may furnish information toterms of an Acquisition Proposal shall constitutes a new Acquisition Proposal) which constitutes a Superior Proposal, and enter into discussions with(y) such party’s board of directors (or any committee thereof charged with such authority) has concluded in good faith, based at least in part on the advice of its outside legal counsel, that the failure to take some or all of the actions set forth in clause (1) or clause (2) below with respect to such Acquisition Proposal would reasonably be expected to result in a Person who has made an unsolicitedbreach of its fiduciary obligations to its stockholders under applicable Law, writtensuch party shall promptly, bona fide proposal or offer regarding a Competing Transaction, but in any event in less than one (1) day following the date of such conclusion (but in any event prior to taking the actions set forth in (1) and the Board has (i2) determined, in its good faith judgment (after consultation with its financial advisorbelow), provide to the other party hereunder written notice that such proposal or offer shall state expressly (A) that it has received an Acquisition Proposal which constitutes or is reasonably likely to constitute a Superior Proposal, (B) that such party’s board of directors (or a committee thereof charged with such authority) has made the conclusions set forth in clause (y) above and (C) the identity of the party making such Acquisition Proposal and the material terms and conditions of the Acquisition Proposal (such notice, the “Superior Proposal Notice”) and may then take the following actions:
(1) furnish nonpublic information to the third party making such Acquisition Proposal, provided, that (x) prior to so furnishing, the furnishing party receives from the third party an executed confidentiality agreement containing terms no more favorable to the third party than the terms under the Confidentiality Agreement and customary standstill provisions and (y) contemporaneously with furnishing any such nonpublic information to such third party, the furnishing party furnishes a copy of such nonpublic information to the other party hereunder (to the extent such nonpublic information has not been previously so furnished); and
(2) engage in discussions and/or negotiations with the third party with respect to the Acquisition Proposal.
(d) In response to the receipt of a Superior Proposal that has not been withdrawn and continues to constitute a Superior Proposal after compliance by the party receiving the Superior Proposal with this Section 6.4(d), the board of directors (or any committee thereof charged with such authority) of such party may (x) withhold or withdraw the Company Recommendation or the Parent Recommendation, as the case may be or (y) approve, adopt, endorse or recommend to its stockholders a Superior Proposal (any of the foregoing actions, whether by the board of directors or a committee thereof, a “Change of Recommendation”), only if all of the following conditions are met:
(i) the Company Stockholders’ Meeting or the Parent Stockholders’ Meeting, as the case may be, has not occurred;
(ii) determinedthe board of directors (or any committee thereof charged with such authority) of such party has concluded in good faith, based at least in part on advice of its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing failure of such information or entering into discussions is required the board of directors to comply with effect a Change of Recommendation would reasonably be expected to result in a breach of its fiduciary obligations to its stockholders under applicable Law; and
(iii) the board of directors of such party has (A) provided to the other party hereto five (5) Business Days’ prior written notice of its intent to effect a Change of Recommendation (which notice shall include reasonable details of the applicable Superior Proposal and the manner in which it intends to effect the Change of Recommendation), (B) made available to the other party hereto all materials and information made available to the person making the Superior Proposal in connection with such Superior Proposal, and (C) for such five (5) Business Day period following the delivery to the other party of such notice and the provision of the materials and information referred to in (B) above, such party shall, if requested by the other party, negotiate in good faith with the other party to revise this Agreement with the goal that the Acquisition Proposal that constituted a Superior Proposal would no longer constitute a Superior Proposal.
(e) Each of the Company and Parent agrees that it shall not submit to the vote of its stockholders any Acquisition Proposal (whether or not a Superior Proposal) or propose to do so. Nothing contained in this Agreement shall be deemed to restrict the Company or Parent from complying with Rules 14d-9 or 14e-2 under the Exchange Act or be deemed to restrict the Company or Parent from making such other disclosures as may be required by federal securities laws or applicable fiduciary duties.
(f) It is understood and agreed that the Company, its board of directors (or any committee thereof charged with applicable authority) and its outside legal counsel shall be entitled to rely on and deem applicable to the Company and its stockholders board of directors the Law applicable to corporations incorporated in Delaware for purposes of making the conclusions contemplated by this Section 6.4 (and providing advice with respect thereto) relating to the fiduciary obligations of such person. The immediately preceding sentence is intended only to govern the contractual rights of the parties to this Agreement; it being understood and agreed that nothing in this Agreement is intended to modify any fiduciary duties of the Company’s board of directors or any committee thereof under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Integrated Device Technology Inc)
No Solicitation of Transactions. (a) The Company agrees Each of AmSurg and Holdings shall immediately cease, and shall cause its respective Subsidiaries and Representatives to immediately cease, any discussions or negotiations with any Person that neither it nor may be ongoing with respect to a Competing Proposal, or any Subsidiary nor proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly to AmSurg or Holdings, as applicable, or destroyed any confidential information that has been provided in any such discussions or negotiations. From the date hereof until the earlier of the directorsMerger 2 Effective Time or the date of termination of this Agreement in accordance with Article 7, officers or employees each of it or any Subsidiary willAmSurg and Holdings shall not, and that it will shall cause its respective Subsidiaries and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage or induce (including by way of furnishing nonpublic informationinformation which has not been previously publicly disseminated), or take any other action designed to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that which constitutes, or may could reasonably be expected to lead to, any Competing TransactionProposal, or (ii) engage in any discussions or negotiations regarding any Competing Proposal; provided, however, that (x) such party may ascertain facts from the Person making an unsolicited Competing Proposal for the sole purpose of the AmSurg Board or the Holdings Board, as applicable, informing itself about the terms of such Competing Proposal and the Person that made it and (y) if, prior to obtaining the AmSurg Shareholder Approval (in the case of AmSurg) or the Holdings Stockholder Approval (in the case of Holdings) and following the receipt of a bona fide written Competing Proposal made after the date hereof that the AmSurg Board or Holdings Board, as applicable, determines in good faith (after receiving advice of its financial advisor and of its outside legal counsel) is or could reasonably be expected to lead to a Superior Proposal and that was not, directly or indirectly, solicited, initiated or knowingly encouraged in violation of this Section 5.4, the AmSurg Board or the Holdings Board, as applicable, determines in good faith, after consultation with outside legal counsel, that a failure to take action with respect to such Competing Proposal, as applicable, would be inconsistent with its fiduciary duties to AmSurg’s shareholders or Holdings’s stockholders, as applicable, under applicable Law, AmSurg or Holdings may, in response to such Competing Proposal, as applicable, and subject to compliance with Section 5.4(c), (A) furnish information with respect to AmSurg or Holdings, as applicable, to the Person making such Competing Proposal pursuant to an Acceptable Confidentiality Agreement and (B) engage in discussions or negotiations with such Person regarding such Competing Proposal. Except as expressly permitted by this Section 5.4, each of Holdings and AmSurg shall not, and shall cause their respective Subsidiaries and Representatives not to, from and after the date of this Agreement until the earlier of the Merger 2 Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article 7, directly or indirectly (1) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement (other than an Acceptable Confidentiality Agreement) with respect to any Competing Proposal; (2) take any action to make the provisions of any takeover statute inapplicable to any transactions contemplated by a Competing Proposal; (3) terminate, amend, release, modify or knowingly fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar agreement entered into by the applicable party in respect of or in contemplation of a Competing Proposal (other than to the extent the Holdings Board or the AmSurg Board, as applicable, determines in good faith after consultation with its outside legal counsel, that failure to take any of such actions under clause (3) would be inconsistent with its fiduciary duties under applicable Law), or (4) propose to do any of the foregoing. For the avoidance of doubt, nothing in this Section 5.4(a) shall relieve any party from its obligations under Section 5.6.
(b) Notwithstanding any other provision of this Agreement, including Section 5.3 but subject to compliance with this Section 5.4, prior to receipt of the AmSurg Shareholder Approval, the AmSurg Board may, or, prior to receipt of the Holdings Stockholder Approval, the Holdings Board may, in response to any bona fide written Competing Proposal that was not, directly or indirectly, solicited, initiated or knowingly encouraged in violation of this Section 5.4, effect an AmSurg Adverse Recommendation Change or a Holdings Adverse Recommendation Change, as applicable, if and only if (i) the AmSurg Board or the Holdings Board, as applicable, concludes in good faith, after consultation with AmSurg’s or Holdings’s outside financial advisors and outside legal counsel, that such Competing Proposal constitutes a Superior Proposal and (ii) the Holdings Board or the AmSurg Board, as applicable, provides the other party five (5) Business Days prior written notice of its intention to take such action (a “Competing Proposal Notice”), which notice shall include the information with respect to such Competing Proposal that is specified in Section 5.4(c) (it being agreed that neither the delivery of such notice by a party nor any public announcement thereof that such party determines it is required to make under applicable Law shall constitute an AmSurg Adverse Recommendation Change or a Holdings Adverse Recommendation Change, as applicable, unless and until such party shall have failed at or prior to the end of the period referred to in clause (iii) below (and, upon the occurrence of such failure, such notice and such public announcement shall constitute an AmSurg Adverse Recommendation Change or a Holdings Adverse Recommendation Change, as applicable) to publicly announce that it (A) is recommending the Transactions and (B) has determined that such other Competing Proposal (taking into account (x) any modifications or adjustments made to the Transactions agreed to by the other party in writing and (y) any modifications or adjustments made to such other Competing Proposal) is not a Superior Proposal and has publicly rejected such Competing Proposal); (iii) during the five (5) Business Days following such written notice (the “Negotiation Period”), if requested by the other party, the Board of Directors effecting the recommendation change and its Representatives have negotiated in good faith with the other party regarding any revisions to the terms of the Transactions proposed by the other party in response to such Competing Proposal; and (iv) at the end of the five (5) Business Day period described in the foregoing clause (iii), the AmSurg Board or Holdings Board, as applicable, concludes in good faith, after consultation with AmSurg’s or Holdings’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement to which the other party has agreed in writing to make to the terms of the Transactions), that the Competing Proposal continues to be a Superior Proposal and, after consultation with AmSurg’s or Holdings’s outside legal counsel, that the failure to make an AmSurg Adverse Recommendation Change or Holdings Adverse Recommendation Change, as applicable, would be inconsistent with the exercise by the AmSurg Board or Holdings Board of its fiduciary duties to the shareholders of AmSurg or stockholders of Holdings under applicable Law. Any material amendment or modification to any Competing Proposal shall require a new Competing Proposal Notice and the Negotiation Period shall be extended by an additional three (3) Business Days from the date of receipt of such new Competing Proposal Notice.
(c) In addition to the obligations of Holdings and AmSurg set forth in Section 5.4(a) and Section 5.4(b), Holdings or AmSurg shall promptly, and in any event no later than 24 hours, after it receives (i) any Competing Proposal or indication by any Person that it intends to make or is considering making a Competing Proposal, (ii) enter into any request for non-public information relating to Holdings or maintain AmSurg or continue their respective Subsidiaries other than requests for information in the ordinary course of business consistent with past practice and unrelated to a Competing Proposal or (iii) any inquiry or request for discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse regarding any Competing Transaction or enter into any letter Proposal, notify the other party orally and in writing of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officersforegoing occurrences and provide a reasonably detailed description of such request, directors inquiry or employees Competing Proposal, including any modifications thereto. Each party shall keep the other party reasonably informed (orally and in writing) on a current basis (and in any event at the other party’s request and otherwise no later than 24 hours after the occurrence of any material changes, developments, discussions or negotiations) of the Company status of any request, inquiry or Competing Proposal (including the terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations, including furnishing copies of its Subsidiariesany written inquiries, material correspondence and draft documentation, and written summaries of any material oral inquiries or any investment bankerdiscussions. Without limiting the foregoing, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company each party shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (124 hours) Business Day after notify the Company attains knowledge thereof), other party orally and in writing, writing if any proposal it determines to begin providing information or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any engage in discussions or negotiations with any Person that may have been conducted heretofore with respect to concerning a Competing TransactionProposal pursuant to Section 5.4. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party Each of Holdings and the Company also AmSurg agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required subject to comply with its fiduciary obligations to the Company and its stockholders applicable restrictions under applicable Law, (iii) provided written notice it shall, prior to CIG and or concurrent with the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which time it is a party).
(c) Except as otherwise provided to any third parties, provide to the other party any non-public information concerning Holdings or AmSurg and their respective Subsidiaries that Holdings or AmSurg provided to any third party in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation connection with respect to, any Competing TransactionProposal which was not previously provided to the other party.
(d) The parties acknowledge Notwithstanding anything in this Section 5.4 to the contrary, at any time prior to obtaining the Holdings Stockholder Approval or the AmSurg Shareholder Approval, the Holdings Board or the AmSurg Board may make a Holdings Adverse Recommendation Change or an AmSurg Adverse Recommendation Change, as applicable, if (i) such board determines that an Intervening Event has occurred and agree is continuing and (ii) such board determines in good faith (after consultation with outside counsel) that nothing contained herein shall affect the failure to make a Holdings Adverse Recommendation Change or an AmSurg Adverse Recommendation Change, as applicable, in any way interfere response to such Intervening Event would be inconsistent with its fiduciary duties to the applicable party’s stockholders or shareholders, as applicable, under applicable Law; provided that (x) the Holdings Board or the AmSurg Board has given the other party at least five (5) Business Days prior written notice of its intention to take such action and specifying in reasonable detail the circumstances related to such determination and (y) prior to effecting a Holdings Adverse Recommendation Change or an AmSurg Adverse Recommendation Change, the applicable party has negotiated, and has caused its Representatives to negotiate, in good faith with the Company’s Obligation other party during such notice period to comply the extent such other party wishes to negotiate, to enable such party to revise the terms of this Agreement, such that the failure to make a Holdings Adverse Recommendation Change or an AmSurg Adverse Recommendation Change, as applicable, would not be inconsistent with its fiduciary duties to stockholders or shareholders, as applicable, under applicable Law.
(e) Nothing contained in this Section 5.4 shall be deemed to prohibit AmSurg, Holdings, the AmSurg Board, the Holdings Board or any committee of the AmSurg Board or the Holdings Board from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to a Competing Proposal, including taking and disclosing to its shareholders or stockholders, as applicable, a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange ActAct (or any similar communication to shareholders) or (ii) making any “stop-look-and-listen” communication to the shareholders of AmSurg or the stockholders of Holdings, as applicable, pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to the shareholders of AmSurg or the stockholders of Holdings, as applicable); provided that neither AmSurg nor the AmSurg Board may effect an AmSurg Adverse Recommendation Change and neither Holdings nor the Holdings Board may effect a Holdings Adverse Recommendation Change, in each case except in accordance with Section 5.4(d). Actions permitted under this Section 5.4(e) shall not be a basis for Holdings or AmSurg to terminate this Agreement pursuant to Section 7.1(c)(iii) or Section 7.1(d)(iii), as applicable.
(f) Any failure of Holdings’s or AmSurg’s respective Subsidiaries or its and their respective Representatives to fully comply with this Section 5.4 (as if such Subsidiaries or Representatives were directly subject to this Section 5.4) shall be deemed a breach of this Section 5.4 by Holdings or AmSurg, as applicable.
(g) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Envision Healthcare Holdings, Inc.), Merger Agreement (Amsurg Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willits Subsidiaries shall, and that it will shall use its reasonable best efforts to cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectly, : (i) initiate, solicit, initiate knowingly encourage or encourage take any other action designed to, or which could reasonably be expected to, facilitate an Acquisition Proposal or the making, submission or announcement of, any Acquisition Proposal, (including by way of furnishing ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information)information with respect to, or take any other action to facilitate, facilitate any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, constitutes or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing TransactionAcquisition Proposal, (iii) agree toengage in discussions with any person with respect to any Acquisition Proposal, approve except to notify such person as to the existence of these provisions, (iv) approve, endorse or endorse recommend any Competing Transaction Acquisition Proposal with respect to it, or (v) enter into any letter of intent or other Contract similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Competing Transaction Acquisition Proposal or a transaction contemplated thereby; provided, that so long as there has been no breach of this Section 5.5(a), the Company may, in response to an Acquisition Proposal that was not solicited after the date hereof and otherwise in compliance with the obligations under Section 5.5(c), participate in discussions or negotiations with, request clarifications from, or furnish information to, any person which makes such Acquisition Proposal if (ivA) authorize such action is taken subject to a confidentiality agreement containing customary terms and conditions; provided, that if such confidentiality agreement contains provisions that are less restrictive than the comparable provisions of the Confidentiality Agreement, or permit omits restrictive provisions contained in the Confidentiality Agreement, then the Confidentiality Agreement shall be deemed to be automatically amended to contain in substitution for such comparable provisions such less restrictive provisions, or to omit such restrictive provisions, as the case may be, and in connection with the foregoing, the Company agrees not to waive any of the officersprovisions in any such confidentiality agreement without waiving the similar provisions in the Confidentiality Agreement to the same extent, directors or employees of (B) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel) and financial advisor (which may be its current outside financial advisor), that such Acquisition Proposal could reasonably be expected to lead to a Superior Proposal and (C) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions would be inconsistent with its fiduciary duties under applicable Law. The Company shall immediately terminate, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to immediately terminate, all discussions or negotiations, if any, with any third party with respect to, or any that could reasonably be expected to lead to an Acquisition Proposal. The Company shall promptly (and in any event within two (2) business days) request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal immediately return or destroy all confidential information heretofore furnished to such person or its Representatives.
(b) Neither the Company Board nor any committee thereof shall (i) withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Recommendation or (ii) resolve to do any of the foregoing; provided, that the Company Board may withdraw, modify or amend the Company Recommendation if, following receipt of a Superior Proposal (A) the Company has complied with its obligations under this Section 5.5, (B) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take any such action. The actions would be inconsistent with its fiduciary duties under applicable Law and (C) prior to taking such actions, the Company Board shall have given Parent at least five (5) days notice of its intention to take such action and the opportunity to meet with the Company and its outside counsel and financial advisor.
(c) In addition to the obligations set forth in Section 5.5(a), the Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (148 hours) Business Day after the Company attains knowledge thereof), orally and in writing, if advise Parent of any proposal request for information with respect to any Acquisition Proposal or offerof any Acquisition Proposal, or any inquiry inquiry, proposal, discussions or contact with any Person negotiation with respect theretoto any Acquisition Proposal, regarding a Competing Transaction is made, specifying the material terms and conditions thereof of such request, Acquisition Proposal, inquiry, proposal, discussion or negotiation, and the Company shall, within 48 hours of the receipt thereof, promptly provide to Parent copies of any written materials received in connection with any of the foregoing, and the identity of the party person making any such Acquisition Proposal or such request, inquiry or proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated with whom any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transactionare taking place. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement keep Parent reasonably informed of the status and material details (including material amendments) with respect to which it is a party and the information previously provided by the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information toAcquisition Proposal, and enter into discussions withshall provide to Parent within 48 hours of receipt thereof all written materials received by it with respect thereto. The Company shall promptly provide to Parent any non-public information concerning it provided to any other person in connection with any Acquisition Proposal, a Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), which was not previously provided to Parent. With respect to any Acquisition Proposal that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, during the five (ii5) determinedday period referred to in clause (C) of Section 5.5(b) above, in its the Company shall, if requested by Parent, provide Parent with an opportunity to negotiate revisions to the terms of this Agreement for the Company Board’s good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactionconsideration.
(d) The Nothing contained in this Agreement shall be deemed to restrict the parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply from complying with Rule 14d-9 or 14e-2 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Zhone Technologies Inc), Merger Agreement (Paradyne Networks Inc)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toCompany shall, directly or indirectly, through any of its officers, directors, agents, investment bankers or attorneys or otherwise, (i) solicit, initiate initiate, facilitate, induce or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may could reasonably be expected to lead toto the making, submission or announcement of, any Competing TransactionAcquisition Proposal, including a Superior Proposal or (ii) enter into or maintain or continue discussions or negotiations with any Person participate in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with regarding, or furnish to any Person that may have been conducted heretofore person, any information with respect to a Competing Transaction. The Company shall not release any Person fromto, or waive otherwise cooperate in any provision ofway with respect to, or assist or participate in, facilitate, or induce any confidentiality or standstill agreement to which it is a party and Acquisition Proposal, except that the Company also agrees may take any action referred to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior clause (ii) in response to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, an Acquisition Proposal (A) if the 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 Board has (i) determined, determines in its good faith judgment within five (5) Business Days after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside independent legal counsel (who may be the Company’s 's regularly engaged outside independent legal counsel), thatthat the failure to take such action could reasonably be expected to constitute a breach of its fiduciary duties under applicable law, (B) if the Board determines in light of such good faith that the Acquisition Proposal could reasonably be expected to result in a Superior Proposal, the furnishing of such information or (C) if after giving prior written notice to Parent and Merger Sub and entering into discussions is required a customary confidentiality agreement on terms not materially less favorable to comply the Company than those contained in the Confidentiality Agreement and (D) if there has been no previous violation of this Section 6.05
(a) with its fiduciary obligations respect to such Acquisition Proposal. For purposes of this Agreement, a "Superior Proposal" means any bona fide written proposal, not solicited, initiated or encouraged in violation of this Section 6.05, made by a third person to acquire, directly or indirectly, for consideration consisting of cash and/or securities, all of the equity securities of the Company entitled to vote generally in the election of directors or all or substantially all of the consolidated assets of the Company and its stockholders under applicable LawSubsidiaries, (iii) provided written notice to CIG that does not contain a financing condition, if and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreementonly if, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation reasonably determines (after consulting with respect to, any Competing Transaction.
independent legal counsel (d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with who may be the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.'s regularly engaged independent legal counsel) and its financial advisor)
Appears in 2 contracts
Samples: Merger Agreement (Cell Pathways Inc /De), Merger Agreement (Osi Pharmaceuticals Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Each of the directorsCompany and Parent will not, officers directly or employees of it or any Subsidiary willindirectly, and that it will cause its and its Subsidiaries’ agentsofficers, directors, employees, subsidiaries, affiliates, agents or advisors and or other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any SubsidiaryCommittee of its Board of Directors) not to, directly or indirectly, take any action to (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action designed to facilitate, directly or indirectly, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholdersshareholders) that constitutes, or may reasonably be expected to lead to, any Competing TransactionTransaction (as defined below), (ii) enter into or maintain or continue participate in any way in discussions or negotiations negotiate with any Person person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree toto or approve, approve recommend or endorse any Competing Transaction Transaction, or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors directors, employees or employees affiliates of the Company such party or any of its Subsidiariessubsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company such party or any of its Subsidiariessuch party's subsidiaries or any Committee of the Board of Directors of such party, to take any such action. The Company shall notify CIG Parent and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after Parent shall notify the Company attains knowledge thereof), orally and in writing, promptly if any proposal or offer, or any inquiry or contact with any Person person with respect thereto, regarding a Competing Transaction is made, specifying made and each shall provide the material terms and conditions thereof and other with the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments)and with a summary of the terms thereof and each shall keep the other reasonably apprised of the status thereof. The Each of the Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause Parent agrees not to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiaryparty.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable6.4(a), the Board of Directors of each of the Company and Parent may furnish cause Parent or the Company to furnish, pursuant to a customary confidentiality agreement, information to, and enter into may participate in discussions or negotiations with, any person that, unsolicited by it after the day of the signing of this Agreement, has submitted a Person who has made an unsolicited, written, bona fide written proposal or offer regarding to it relating to a Competing TransactionTransaction which was not solicited by it or which did not otherwise result from a breach of Section 6.4(a), and to the extent that the Board has of the Company or Parent (ias applicable) determined, determines in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light that it is necessary to do so to avoid a breach of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations duties to the Company and or its stockholders shareholders or Parent or its shareholders under applicable Law, (iiiLaws. Such furnishing of information and participation in discussions or negotiations in accordance with this Section 6.4(b) shall not constitute a breach of this Agreement by such party; provided written notice that neither the Company nor Parent shall have any right to CIG and the NBCU Entities terminate this Agreement or otherwise cease performance of its intent obligations hereunder except pursuant to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)Article VIII hereof.
(c) Except as otherwise provided Subject to Section 6.1(b) and Section 6.2, nothing contained in this Agreement, neither Section 6.4 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Board nor Exchange Act or from making any committee thereof shall withdraw or modify, or propose disclosure to withdraw or modifyits shareholders if, in the good faith judgment of its Board of Directors, failure so to disclose would result in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee violation of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactionapplicable Law.
(d) The parties acknowledge A "Competing Transaction" with respect to the Company or Parent, respectively, means any of the following involving the Company or Parent, respectively, other than the Merger: any proposed (i) merger, consolidation, share exchange, business combination or other similar transaction involving such party, (ii) sale, lease, exchange, transfer or other disposition directly or indirectly of 50% or more of the consolidated assets of such party and agree that nothing contained herein shall affect its subsidiaries, taken as a whole, or (iii) transaction in which any way interfere with the Company’s Obligation to comply with person would acquire beneficial ownership (as such term is defined in Rule 14d-9 13d-3 under the Exchange Act) of, or the right to acquire beneficial ownership, of (whether itself, as a member of any "group" (as such term is defined under the Exchange Act) or otherwise), 50% or more of the outstanding voting capital stock of the Company or Parent, respectively.
Appears in 2 contracts
Samples: Merger Agreement (Mosinee Paper Corp), Merger Agreement (Wausau Paper Mills Co)
No Solicitation of Transactions. (a) The From the date hereof until the earlier of termination of this Agreement or the Closing, none of the Company agrees that neither it nor any Subsidiary nor or any of the directors, officers or employees of it or any Subsidiary its Subsidiaries will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not to, directly or indirectly, whether through any director, officer, employee, financial advisor, legal counsel, accountant, other agent or representative (ias used in this Section 7.3, "REPRESENTATIVES") solicitor otherwise, initiate (A) initiate, solicit or encourage (including by way of furnishing nonpublic information)encourage, or take any other action to facilitate, facilitate any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constituteswith respect to, or may reasonably be expected (B) except to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person the extent required in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any the exercise of the officers, directors or employees fiduciary duties of the Board of Directors of the Company or any of its Subsidiaries, under applicable law as advised by independent counsel in connection with an unsolicited proposal, engage or participate in negotiations concerning, provide any nonpublic information or data to, or have any discussions with, any person other than a party hereto or their representatives relating to, any (i) acquisition, (ii) tender offer (including a self-tender offer), (iii) exchange offer, (iv) merger, (v) consolidation, (vi) acquisition of beneficial ownership of (or the right to vote securities representing) 10% or more of the total voting power of such entity or any investment bankerof its Subsidiaries, financial advisor(vii) dissolution, attorney(viii) business combination, accountant (ix) purchase of all or any significant portion of the assets or any division of (or any equity interest in) such entity, or (x) any similar transaction other representative retained than the stock purchase contemplated by this Agreement (such proposals, announcements, or transactions being referred to as "ACQUISITION PROPOSALS"). Notwithstanding the foregoing, this Section 7.3 shall not prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (a) the Board of Directors of the Company determines in good faith that such action is so required for the Board of Directors to comply with its fiduciary duties to shareholders imposed by law and the Board has been so advised in writing (with a copy furnished to Delta) by independent, outside counsel, in its judgment and opinion, as being so required, (b) prior to furnishing information to, or entering into discussions and negotiations with, such person or entity, the Company provides written notice to Delta to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (c) the Company keeps Delta informed of the status and all material information with respect to any such discussions or negotiations. Nothing in this Section 7.3 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article IX hereof), (y) permit the Company or any of its Subsidiaries, Subsidiaries to take enter into any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore Agreement with respect to a Competing Transaction. The Company shall not release any Person froman Acquisition Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf none of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement and any related agreements Subsidiaries 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intentAgreement with any person that provides for, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with facilitates, an Acquisition Proposal), or (z) affect any other obligation of the Company’s Obligation to comply with Rule 14d-9 Company under the Exchange Actthis Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Delta Galil Industries LTD), Stock Purchase Agreement (Delta Galil Industries LTD)
No Solicitation of Transactions. (a) The Within one (1) Business Day of the date hereof the Company agrees will deliver a written notice to each Person with which ongoing discussions with respect to a Third Party Acquisition Proposal are then pending, to the effect that neither it nor the Company is ending all such discussions and negotiations with such Person with respect to any Subsidiary nor Acquisition Proposal and such notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and its Subsidiaries (other than, for the avoidance of doubt, commercial contracts between the Company or any of its Subsidiaries and such Person, or other confidential information provided in connection with such commercial contracts). From the directorsdate hereof and during the Pre-Closing Period, officers the Company will not and will not authorize or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or permit any Subsidiary) not , or Representative to, directly or indirectly, :
(i) initiate, solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), providing information in a manner designed to knowingly encourage) or take any other action to facilitate, knowingly facilitate any inquiries or the making making, submission or announcement of any proposal Acquisition Proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to an Acquisition Proposal;
(ii) engage in, continue or otherwise participate in any discussions (other than to state that they are not permitted to have discussions) or negotiations regarding, or provide any information concerning the Company or any of its Subsidiaries to any Person relating to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, Acquisition Proposal;
(iii) agree togrant any waiver, approve amendment or endorse release under any Competing Transaction standstill or confidentiality agreement; or
(iv) approve, endorse, recommend or execute or enter into any letter of intent intent, agreement in principle, merger agreement, acquisition agreement or other Contract similar agreement relating to any Competing Transaction an Acquisition Proposal or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, offer that is intended to lead to an Acquisition Proposal or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and requires the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring abandon this Agreement (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiaryother than an Acceptable Confidentiality Agreement).
(b) Notwithstanding anything to the contrary contained in Section 5.6(a) at any time prior to, but not after, the receipt of the Company Required Vote, the Company may, subject to compliance with this Section 10.05, prior 5.6:
(i) provide information in response to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information to, and enter into discussions with, a request therefor to a Person who has made an unsolicited, written, unsolicited bona fide proposal written Acquisition Proposal after the date of this Agreement if and only if, prior to providing such information, the Company has received from the Person so requesting such information an executed Acceptable Confidentiality Agreement; provided that the Company shall promptly (and in any event within 24 hours) make available to Parent any material information concerning the Company and its Subsidiaries that is provided to any Person making such Acquisition Proposal that is given such access and that was not previously made available to Parent or the Parent Representatives; or
(ii) engage or participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Acquisition Proposal; provided, that prior to taking any action described in Section 5.6(b)(i) or Section 5.6(b)(ii) above, (A) the Company Board of Directors shall have determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be reasonably likely to violate its fiduciary duties to the Company Shareholders under applicable Laws and (B) the Company Board of Directors shall have determined in good faith, based on the information then available and after consultation with its independent financial advisor and outside legal counsel, that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal. Without modifying the generality of the foregoing, in making such determinations the Company Board of Directors shall take into consideration, among other factors: (x) whether such Third Party is reasonably likely to have adequate sources of financing or adequate funds to consummate such Acquisition Proposal and (y) whether such Third Party has given reasonable assurances that it will not propose obtaining financing as a condition to its obligation to consummate such Acquisition Proposal.
(c) From the date hereof and during the Pre-Closing Period, the Company agrees that it will promptly (and, in any event, within 24 hours) notify Parent of if any proposals or offers with respect to an Acquisition Proposal are received by, any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, the Company or any of its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer regarding or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a Competing Transactionprompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in the Company’s intentions as previously notified.
(d) Except as expressly provided in Section 5.6(e), at any time after the date hereof, neither the Company Board has of Directors nor any committee thereof nor any of the directors, whether acting in their individual capacity or as a director, shall:
(i) determined(A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or the Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) an Acquisition Proposal, (C) (x) fail to publicly recommend against any Acquisition Proposal or (y) fail to publicly reaffirm the Company Recommendation, in each case of (x) and (y) within five (5) Business Days after Parent so requests in writing, (D) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal, or (E) fail to include the Company Recommendation in the Proxy Statement (any action described in clauses (A) through (E), a “Company Adverse Recommendation Change”); or
(ii) cause or permit the Company or any of its Subsidiaries to enter into any Acquisition Agreement relating to any Acquisition Proposal.
(e) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Required Vote, if the Company has received a bona fide written Acquisition Proposal from any Person that is not withdrawn and that the Company Board of Directors concludes in good faith judgment constitutes a Superior Proposal, (i) the Company Board of Directors may effect a Company Adverse Recommendation Change with respect to such Superior Proposal, or (ii) the Company Board of Directors may authorize the Company to terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, if and only if:
(i) the Company Board of Directors determines in good faith, after consultation with independent financial advisor and outside legal counsel, that failure to do so would be reasonably likely to violate its fiduciary obligations under applicable Laws;
(ii) the Company shall have complied with its obligations under this Section 5.6 with respect to such Superior Proposal;
(iii) the Company shall have provided prior written notice to Parent at least four (4) Business Days in advance (the “Notice Period”), to the effect that the Company Board of Directors has received a bona fide written Acquisition Proposal that is not withdrawn and that the Company Board of Directors concludes in good faith constitutes a Superior Proposal and, absent any revision to the terms and conditions of this Agreement, the Company Board of Directors has resolved to effect a Company Adverse Recommendation Change and/or to terminate this Agreement pursuant to this Section 5.6(e), which notice shall include the identity of the party making the Superior Proposal and copies of the documentation setting forth the material terms and conditions of such Superior Proposal; and
(A) prior to effecting such Company Adverse Recommendation Change or termination, the Company shall, and shall use its reasonable best efforts to cause their financial and legal advisors to, during the Notice Period, negotiate with Parent and the Parent Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such Acquisition Proposal would cease to constitute a Superior Proposal; provided, that in the event of any material revisions to the Acquisition Proposal that the Company Board of Directors has determined to be a Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.6 (including this Section 5.6(e)) with respect to such new written notice; and
(B) in the case of any action described in clause (y) of Section 5.6(e) above, the Company shall have validly terminated this Agreement in accordance with Section 7.1(d), including the payment of the Company Termination Fee in accordance with Section 7.2(b).
(f) Nothing contained in this Section 5.6 shall be deemed to prohibit the Company or the Company Board of Directors from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to an Acquisition Proposal, including taking and disclosing to its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to Shareholders) or (ii) making any “stop-look-and-listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act; provided, however, the Company shall not effect, or disclose pursuant to such rules or otherwise a position which constitutes a Company Adverse Recommendation Change unless specifically permitted by this Section 5.6.
(g) In addition, at any time prior to the time the Required Company Shareholder Vote has been obtained, the Company Board of Directors may, in response to a material development or change in material circumstances occurring or arising after the date hereof, the existence and material consequences of which were not known by the Company Board of Directors at or prior to the date hereof (and not relating to any Acquisition Proposal) (such material development or change in circumstances, an “Intervening Event”), make a Company Adverse Recommendation Change if the Company Board of Directors determines in good faith, after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged advisor and outside legal counsel), that, in light of such Superior ProposalIntervening Event, the furnishing failure of the Company Board of Directors to effect such information or entering into discussions is required to comply a Company Adverse Recommendation Change would be inconsistent with its fiduciary obligations to the Company and its stockholders Shareholders under applicable LawLaws; provided, that, the Company Board of Directors shall not be entitled to exercise its right to make a Company Adverse Recommendation Change pursuant to this sentence unless the Company has (iiii) provided to Parent at least three (3) Business Day prior written notice (unless the Intervening Event arises fewer than three (3) Business Days prior to CIG the Company Shareholders Meeting in which case such notice shall be given as promptly as practicable) advising Parent that the Company Board of Directors intends to take such action and specifying the NBCU Entities of its intent to furnish information or enter into discussions with such Person reasons therefor in reasonable detail and (ivii) obtained from during such Person an executed confidentiality agreement three (it being understood 3) Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to make such adjustments in the terms and conditions of this Agreement in such a manner that such confidentiality agreement and any related agreements shall not include any provision calling obviates the need for any exclusive right to negotiate with such party or having a Company Adverse Recommendation Change as a result of the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which it is a party)Intervening Event.
(ch) Except as otherwise provided The Company agrees that in this Agreementthe event any of its Representatives takes any action which, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation if taken by the Board or any such committee Company, would constitute a breach of the Transaction Agreements to which this Section 5.6, then the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company shall be deemed to enter into any letter be in breach of intent, agreement or obligation with respect to, any Competing Transactionthis Section 5.6.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Sonicwall Inc), Merger Agreement (Sonicwall Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Each of the SAM and STFC shall not, and shall cause their respective Subsidiaries not to, and shall not authorize or permit their respective or their respective Subsidiaries’ directors, officers officers, employees or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not Representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or knowingly facilitate the making of any proposal submission, announcement, proposal, offer or offer (including, without limitation, any proposal inquiry that constitutes or offer to its stockholders) that constitutes, or may would reasonably be expected to lead to, any Competing Transactionto a Takeover Proposal, (ii) enter into into, continue or maintain or continue otherwise participate in any discussions or negotiations regarding any submission, announcement, proposal, offer or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal, or furnish any non-public information with respect to SAM, STFC or any of their respective Subsidiaries to any Person in furtherance of such inquiries (or their Representatives) who has made any submission, announcement, proposal, offer or inquiry that constitutes or would reasonably be expected to obtain lead to a proposal or offer for a Competing TransactionTakeover Proposal, (iii) agree toamend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of STFC (unless, approve and only to the extent, the STFC Board or endorse any Competing Transaction or STFC Special Committee determines in good faith, after consultation with its financial advisor and outside counsel, that the failure to do so would reasonably be likely to constitute a breach of its fiduciary duties to its shareholders under Ohio Law, in which case it may enable such Persons to submit and pursue a Takeover Proposal), (iv) enter into any letter of intent or other Contract relating Takeover Proposal Documentation with respect to any Competing Transaction a Takeover Proposal or (ivv) authorize publicly propose to or permit agree to do any of the officers, directors or employees foregoing. Each of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG SAM and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company STFC shall, and shall cause their respective Subsidiaries and direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) their respective Representatives to, immediately cease and cause to be terminated any all existing discussions or and negotiations as of the date of this Agreement with any Person that may have been conducted heretofore theretofore with respect to any submission, announcement, proposal, offer or inquiry that constitutes or would reasonably be expected to lead to a Competing TransactionTakeover Proposal. The Company shall not release any Person from, Notwithstanding the foregoing or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything else to the contrary set forth in this Section 10.05Agreement, at any time prior to obtaining the Exchange Offer Closing STFC Shareholder Approval, in response to a bona fide written Takeover Proposal received after the date hereof and prior to obtaining the STFC Shareholder Approval that did not result from a breach of this Section 7.08, (I) STFC may (and may authorize and permit its Subsidiaries and Representatives to) contact the Person or any of its Representatives who has made such Takeover Proposal solely to clarify the Exchange Offer Expirationterms of such Takeover Proposal so that the STFC Board or STFC Special Committee, as applicable, may reasonably inform itself about such Takeover Proposal and (II) if the STFC Board may furnish information toor STFC Special Committee, and enter into discussions withas applicable, a Person who has made an unsoliciteddetermines in good faith, written, bona fide proposal or offer regarding a Competing Transaction, and the Board has (i) determined, in its good faith judgment (after consultation with its financial advisor)advisor and outside counsel, that (A) such proposal or offer Takeover Proposal constitutes or is would reasonably be expected to lead to a Superior Proposal and (B) that the failure to do so would reasonably be likely to constitute a Superior Proposalbreach of its fiduciary duties to its shareholders under Ohio Law, STFC may (and may authorize and permit its Subsidiaries and Representatives to), subject to compliance with Section 7.08(c), (iix) determinedfurnish information with respect to SAM, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations STFC and their respective Subsidiaries to the Company Person making such Takeover Proposal (and its stockholders under applicable Law, (iiiRepresentatives) provided written notice pursuant to CIG and the NBCU Entities of its intent a confidentiality agreement containing provisions that are not more favorable to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement than those contained in the Confidentiality Agreement are to LMHC (it being understood that such confidentiality agreement and need not contain any related agreements shall not include any provision calling for any exclusive right standstill provisions); provided that all such information has previously been provided to negotiate LMHC or is provided to LMHC prior to or substantially concurrently with such party or having the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which time it is provided to such Person or any of its Representatives, and (y) participate in discussions and negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal.
(b) Neither the SAM Board nor any committee thereof shall (i) withdraw or withhold (or modify in a partymanner adverse to LMHC), or publicly propose to withdraw or withhold (or modify in a manner adverse to LMHC), the approval, declaration of advisability or recommendation by the SAM Board or any such committee of this Agreement, the SAM Transaction, the Plan of Reorganization, the Amended Organizational Documents or the other transactions contemplated hereby, (ii) approve, declare advisable or recommend the adoption of, or publicly propose to approve, declare advisable or recommend the adoption of, any Takeover Proposal or (iii) fail to publicly reaffirm the SAM Recommendation within five (5) Business Days of a written request by LMHC to make such public reaffirmation following the receipt by SAM of a public Takeover Proposal that has not been withdrawn; provided that LMHC may make any such request only twice with respect to a particular Takeover Proposal (and, additionally, once per material modification to any such Takeover Proposal that is made public).
(c) Except as otherwise provided Excepted to the extent permitted by and in this Agreementcompliance with Section 7.08(d), neither the STFC Board nor any committee thereof shall (i) withdraw or modify, withhold (or propose to withdraw or modify, modify in a manner adverse to CIG and the NBCU EntitiesLMHC), or publicly propose to withdraw or withhold (or modify in a manner adverse to LMHC), the approval approval, declaration of advisability or recommendation by the STFC Board or any such committee of this Agreement, the Transaction Agreements to which STFC Merger or the Company is a party and other transactions contemplated hereby, (ii) approve, declare advisable or recommend the Transaction, including the Tender Offer and the Reverse Stock Splitadoption of, or approve publicly propose to approve, declare advisable or recommend, or cause or permit recommend the Company to enter into any letter of intent, agreement or obligation with respect toadoption of, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.Takeover Proposal or
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Except as otherwise provided in this Section 6.05, from the date hereof until the Effective Time or, if earlier, the termination of the directorsthis Agreement in accordance with its terms, officers or employees of it or any Subsidiary willeach party hereto shall not, and that it will cause shall not authorize or knowingly permit its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not Representatives to, directly or indirectly, (i) solicit, initiate solicit or encourage (including by way of furnishing nonpublic information)initiate, or take any other action to knowingly encourage, induce or facilitate, any inquiries Competing Transaction Proposal or the making of any inquiry or proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead toto a Competing Transaction Proposal, any Competing Transaction, or (ii) enter into or maintain or continue participate in any discussions or negotiations with any Person person regarding, or furnish to any person any information with respect to, or cooperate in furtherance of such inquiries any way with any person (whether or to obtain not a proposal or offer for person making a Competing Transaction, (iiiTransaction Proposal) agree with respect to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, Proposal or any inquiry or contact with any Person with respect thereto, regarding proposal that may reasonably be expected to lead to a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the Proposal. Each party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company hereto shall, and shall direct or cause instruct its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been person conducted heretofore with respect to any Competing Transaction Proposal or any inquiry or proposal that may reasonably be expected to lead to a Competing TransactionTransaction Proposal, request the prompt return or destruction of all confidential information previously furnished any such person or its Representatives and immediately terminate all physical and electronic data room access previously granted to any such person or its Representatives. The Company Neither the Trulia Board (or any committee thereof) nor the Zillow Board (or any committee thereof) shall not release any Person fromadopt, or waive propose publicly to adopt, or allow Trulia or any provision ofTrulia Subsidiary or Zillow or any Zillow Subsidiary, as the case may be, to execute or enter into, any confidentiality letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or standstill other agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed or arrangement (other than a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, referred to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.056.05(a)) relating to any Competing Transaction Proposal. Notwithstanding the foregoing, at any time prior to obtaining Trulia Stockholder Approval, in the Exchange Offer Closing or case of the Exchange Offer ExpirationTrulia Board, as applicableand Zillow Shareholder Approval, in the case of the Zillow Board, the Board of Directors of Zillow or Trulia, as the case may furnish information tobe, and enter into discussions withmay, in response to receipt of a Person who has made an unsolicited, written, bona fide proposal or offer regarding a written Competing Transaction, and the Transaction Proposal that such Board has (i) determined, determines in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, and a financial advisor of nationally recognized standing) constitutes or is reasonably expected to result in light of such a Superior Proposal, and which Competing Transaction Proposal did not result from a breach of this Section 6.05(a), subject to compliance with Section 6.05(c), (x) furnish (or cause to be furnished) information with respect to Trulia and its subsidiaries or Zillow and its subsidiaries, as applicable, to the furnishing person making such Competing Transaction Proposal (and its Representatives) (provided that all such information has previously been provided to the other party or is provided to the other party prior to or substantially concurrent with the time it is provided to such person) pursuant to a customary confidentiality agreement not less restrictive of such information or entering into person than the Confidentiality Agreement (other than with respect to “standstill” provisions), and (y) participate in discussions is required to comply with its fiduciary obligations to regarding the Company and its stockholders under applicable Law, (iii) provided written notice to CIG terms of such Competing Transaction Proposal and the NBCU Entities negotiation of its intent to furnish information such terms with, and only with, the person or enter into discussions with persons making such Person Competing Transaction Proposal (and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement person’s or persons’ Representatives and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having financing sources). Without limiting the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.05(a) by a party)’s Subsidiary or any of such Party’s or its Subsidiaries’ Representatives shall constitute a breach of this Section 6.05(a) by such party.
(cb) Except as otherwise provided As used in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.:
Appears in 2 contracts
Samples: Merger Agreement (Zillow Inc), Merger Agreement (Trulia, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary nor any of the directors, directors or officers or employees of it the Company or any Company Subsidiary will, and that it will cause direct its and its the Company Subsidiaries’ agents, advisors and other representatives Representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any Company Subsidiary) ), not to, in each case, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic informationinformation in a manner designed to knowingly encourage), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, including any proposal or offer to its stockholdersStockholders) that constitutes, or may would reasonably be expected to lead to, any Competing Transaction, (ii) enter into or into, maintain or continue discussions or negotiations with with, or provide any Person nonpublic information to, any person or entity (excluding, for avoidance of doubt, the directors, officers, employees, financial advisors, attorneys, advisors and other Representatives of the Company) in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve approve, endorse or endorse recommend any Competing Transaction or enter into any letter of intent or other Contract or commitment contemplating or otherwise relating to any Competing Transaction (in each case, other than (1) a confidentiality agreement entered into in compliance with Section 6.04(b)) and (2) as permitted by Section 6.04(c)), or (iv) authorize or permit any of the officers, officers or directors or employees of the Company or any of its SubsidiariesCompany Subsidiary, or direct any investment banker, financial advisor, attorney, accountant or other representative Representative retained by or acting directly or indirectly under the direction of the Company or any of its SubsidiariesCompany Subsidiary, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable action set forth in clauses (and in any event within one a)(i) – (1a)(iii) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transactionthis Section 6.04. The Company shall not release any Person Third Party whom the Company has reason to believe is seeking to make or has made a proposal or offer regarding a Competing Transaction from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and party, unless the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement Board (or the applicable committee thereof) determines in connection good faith (after consultation with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwiseoutside legal counsel) that the Company or any Subsidiary, if any, failure to return (or if permitted by take such action would reasonably be expected to be inconsistent with the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf fiduciary duties of the Company Board (or such committee) under applicable Law. The Company shall notify Parent as promptly as practicable (and in any event within forty-eight (48) hours after the Company has knowledge thereof), orally and in writing, of any proposal or offer, or any Subsidiaryinquiry or contact with any person, regarding a Competing Transaction or that would reasonably be expected to lead to a Competing Transaction, specifying (x) the material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the party making such proposal or offer or the inquiry or contact, and (z) whether the Company Board (or the applicable committee thereof) has formed any intention to provide confidential information to such person. The Company shall keep Parent informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material terms and conditions thereof). Without limiting the foregoing, the Company shall provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board or members of the Special Committee) of any meeting of the Company Board (or Special Committee) at which the Company Board (or Special Committee), is reasonably expected to consider any Competing Transaction. 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.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable6.04, the Company Board (or applicable committee thereof) may furnish information information, including nonpublic information, to, and enter into discussions with, a Person person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing TransactionTransaction (provided that the Company shall have complied with the requirements of Section 6.04(a) with respect to such proposal or offer), and if the Company Board (or applicable committee thereof) has (i) determined, in its good faith judgment (after consultation with its a financial advisoradvisor of internationally recognized reputation and outside legal counsel), that such proposal or offer constitutes constitutes, or is could reasonably likely be expected to constitute lead to, a Superior Proposal, (ii) determined, in its good faith judgment (after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal or potential Superior Proposal, the furnishing of failure to furnish such information or entering enter into discussions is required would reasonably be expected to comply be inconsistent with its fiduciary obligations to the Company and its stockholders under applicable LawLaws, (iii) provided written notice to CIG and the NBCU Entities Parent of its intent to furnish information or enter into discussions with such Person person at least one (1) Business Day prior to taking any such action, and (iv) obtained from such Person person an executed confidentiality agreement on terms no less favorable to the Company in the aggregate than those contained in the Confidentiality Agreement (except that such confidentiality agreement need not include any standstill or similar provisions if the standstill provision in the Confidentiality Agreement shall have been waived by the Company Board or applicable committee thereof) (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); provided that the Transaction Agreements Company shall concurrently make available to which it Parent any material information concerning the Company and the Company Subsidiaries that is a party)provided to any such person and that was not previously made available to Parent or its Representatives.
(c) Except as otherwise provided set forth in this AgreementSection 6.04(c), neither the Company Board nor any committee thereof shall withdraw (i) change, withhold, withdraw, qualify or modify, or publicly propose to withdraw change, withhold, withdraw, qualify or modify, in a manner adverse to CIG and the NBCU EntitiesParent or Merger Sub, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the TransactionRecommendation, including the Tender Offer and the Reverse Stock Split(ii) adopt, or approve or recommend, or cause publicly propose to adopt, approve or permit recommend, any Competing Transaction (any of such actions under clauses (i) or (ii) being referred to as a “Change in the Company Recommendation”). Notwithstanding the foregoing, if the Company Board (or applicable committee thereof) determines, in its good faith judgment, prior to the time of the Stockholders’ Meeting and after consultation with outside legal counsel, that failure to make a Change in the Company Recommendation would reasonably be expected to be inconsistent with its fiduciary obligations under applicable Laws, the Company Board may effect a Change in the Company Recommendation and, in the case of a Change in Company Recommendation to recommend a Superior Proposal, authorize the termination of this Agreement pursuant to Section 8.03(a), but, if such Change in Company Recommendation relates to Competing Transaction, only (i) if the Company shall have complied in all material respects with the requirements of Sections 6.04(a) and 6.04(b) with respect to such proposal or offer; and (ii) after (A) providing at least four (4) Business Days’ written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board (or applicable committee thereof) has received a Superior Proposal, specifying the material terms and conditions 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 the manner in which it intends (or may intend) to do so (it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to deliver any such notice shall not constitute a Change in the Company Recommendation), and (B) negotiating with and directing its financial and legal advisors to negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, the Limited Guarantee and the Financing Commitments (as evidenced by a definitive merger agreement, a definitive limited guarantee, a definitive equity commitment letter and a definitive contribution agreement executed by Parent, Merger Sub and Sponsor, as applicable, and delivered to the Company prior to the expiration of such negotiation period) so that such third-party proposal or offer would cease to constitute a Superior Proposal; provided that any material modifications to such third-party proposal or offer that the Company Board has determined to be a Superior Proposal shall be deemed a new Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.04(c) (except that the applicable notice period shall be reduced from four (4) Business Days to three (3) Business Days). Notwithstanding anything to the contrary contained in this Agreement, the obligation of the Company to enter into any letter call, give notice of, convene and hold the Stockholders’ Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of intent, agreement or obligation with respect to, any Competing Transaction, or by any Change in the Company Recommendation. The Company shall not submit any Competing Transaction to a vote of the Stockholders.
(d) The parties acknowledge Section 6.04(a) shall not prohibit the Company Board from disclosing to the Stockholders a position contemplated by Rule 14e-2(a) and agree that Rule 14d-9 promulgated under the Exchange Act. For avoidance of doubt, nothing contained herein in this Agreement shall affect prohibit the Company or in the Company Board or any way interfere with the Company’s Obligation to comply with committee thereof from issuing a “stop, look and listen” statement or other communication pending disclosure of its position, as contemplated by Rule 14e-2 or Rule 14d-9 under the Exchange Act. For further avoidance of doubt, it shall not be a violation of this Agreement for the Company Board (or applicable committee thereof), at any meeting at which, or in any written consent in which, it shall adopt resolutions authorizing the termination of this Agreement pursuant to Section 8.03(a), to adopt further resolutions authorizing, agreeing to, approving, endorsing or recommending any Superior Proposal and any definitive agreement or agreements relating thereto.
Appears in 2 contracts
Samples: Merger Agreement (MEMSIC Inc), Merger Agreement (Idg-Accel China Growth Fund Ii L P)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Subject to Section 7.2(d), none of the directorsPaladin, officers or employees of it Paladin OP or any Subsidiary willshall, and that nor shall it will cause its and its Subsidiaries’ agentsauthorize, advisors and other representatives (including, without limitationdirectly or indirectly, any investment bankerRepresentative of Paladin, attorney or accountant retained by it Paladin OP or any Subsidiary) not Subsidiary to, directly or indirectly, (i) solicit, initiate solicit or encourage knowingly facilitate (including by way of furnishing nonpublic information), information or take any other action to facilitate, assistance) any inquiries with respect to, or the making of any proposal or offer (including, without limitationof, any proposal Acquisition Proposal or offer afford access to its stockholders) the business, Properties, assets, books or records of Paladin OP or any of the Subsidiaries, to any Person that constituteshas made or, to the knowledge of Paladin OP, is considering making or may reasonably be expected seeking to lead to, make any Competing TransactionAcquisition Proposal, (ii) enter into into, continue or maintain or continue otherwise participate in discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal an Acquisition Proposal or offer for a Competing Transactiongrant any waiver or release to any Person under any standstill agreement or similar obligation to Paladin OP or any Subsidiary other than the automatic termination of standstill obligations pursuant to the terms of agreements as in effect as of the date hereof, by virtue of the execution and announcement of this Agreement or otherwise, (iii) agree towithdraw, approve modify or endorse amend the Paladin Recommendation in any Competing Transaction or enter into any letter of intent or other Contract relating manner adverse to any Competing Transaction Buyer Party, or fail to make the Paladin Recommendation (ivany event described in this clause (iii), a “Change in Recommendation”) authorize or permit any (it being understood that the Paladin Board may choose to take no position with respect to an Acquisition Proposal until the close of business as of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) tenth Business Day after the Company attains knowledge thereofcommencement of such Acquisition Proposal pursuant to Rule 14d-2 under the Exchange Act without such action being considered an adverse modification), orally and in writing(iv) approve, if endorse or recommend any proposal or offerAcquisition Proposal, or (v) enter into any inquiry agreement in principle, arrangement, understanding, contract or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments)agreement relating to an Acquisition Proposal. The Company Paladin OP shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives to, immediately cease any discussions, negotiations or communications with any party or parties with respect to any Acquisition Proposal. It is agreed that any violation of the restrictions on Paladin, Paladin OP or any Subsidiary set forth in this Section by any Representative thereof shall be deemed a breach of this Section by the Paladin Parties.
(b) The Paladin Parties shall, and shall cause the Subsidiaries and its and their Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations negotiations, if any, with any Person that may have been and its Representatives conducted heretofore prior to the date hereof with respect to a Competing Transactionany Acquisition Proposal. The Company As of the Closing Date, Paladin shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement assign to which it is a party and the Company also agrees to promptly request Parent each Person that has heretofore executed a confidentiality agreement executed by a Person other than Parent, if any, within the 12-month period prior to the date hereof in connection with its consideration of acquiring (whether by mergerany Acquisition Proposal. To the extent any such confidentiality agreement is not assignable, acquisition the Paladin Parties shall use their reasonable best efforts to secure their rights and ensure the performance of stock or assets or otherwise) such other Person’s obligations under the Company or any Subsidiary, if anyrelevant confidentiality agreement and, to the extent provided or permitted thereunder, to require such other Person to return or destroy (or if permitted by the applicable confidentiality agreement, destroyand confirm destruction of) all confidential such information heretofore furnished to such Person by or on behalf of the Company or any Subsidiaryas promptly as reasonably practicable.
(bc) Notwithstanding anything Paladin and Paladin OP shall promptly, and in any event within forty-eight hours after receipt, notify Parent of the receipt of (i) an Acquisition Proposal, (ii) any request for information relating to Paladin, Paladin OP or any Subsidiaries (other than requests for information unrelated to an Acquisition Proposal) or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal, which any director or executive officer of Paladin OP or any Representatives for any Paladin Party may receive after the date hereof. Such notification shall include, to the contrary extent then known, the identity of the parties and a copy of such Acquisition Proposal, inquiry or request or, if not made in writing, a summary written description thereof. Paladin and Paladin OP shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such proposal, indication, inquiry or request. Paladin OP shall not, and shall not permit any Subsidiary to, terminate, waive, amend or modify any provision of any existing standstill or confidentiality agreement to which Paladin OP or any Subsidiary is a party, in each case relating to an Acquisition Proposal.
(d) Subject to Paladin OP’s compliance with the provisions of this Section 10.057.2, and only prior to the Exchange Offer Closing Paladin Shareholder Approval, following the receipt by Paladin, Paladin OP or the Exchange Offer Expiration, as applicableany Subsidiary of a written Acquisition Proposal, the Paladin Board may furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal (directly or offer regarding a Competing Transaction, and the Board has through Representatives) (i) determinedcontact such Person and its advisors solely for the purpose of clarifying the proposal and any material terms thereof and the conditions to consummation, in its good faith judgment (after consultation with its financial advisor), that such so as to determine whether the proposal or offer constitutes or for an Acquisition Proposal is reasonably likely to constitute result in a Superior Proposal and (ii) if the Paladin Board determines in good faith following consultation with Paladin’s legal and financial advisors that such Acquisition Proposal is reasonably likely to result in a Superior Proposal, the Paladin Board thereafter may (A) furnish non-public information with respect to Paladin OP and the Subsidiaries to the Person who made such proposal (provided that Paladin OP (I) has previously or concurrently furnished such information to Parent and (II) shall furnish such information pursuant to a confidentiality agreement which is at least as favorable to Paladin OP as the Confidentiality Agreement), (B) participate in negotiations regarding such proposal, (C) following receipt of a written Acquisition Proposal that constitutes a Superior Proposal, (iix) determinedrecommend that Paladin’s shareholders approve such Superior Proposal and, in its good faith judgment after consultation with outside legal counsel connection therewith, effect a Change in Recommendation and (who may be y) authorize Paladin OP to enter into a definitive agreement providing for the Company’s regularly engaged outside legal counsel), that, in light implementation of such Superior Proposal; provided that (1) the receipt of such Acquisition Proposal did not result from a breach of this Section 7.2, (2) prior to taking any foregoing action, the furnishing of Paladin Board determines in good faith that failure to take such information or entering into discussions is required to comply action would be inconsistent with its the directors’ fiduciary obligations to the Company and its stockholders duties under applicable Law, (iii3) provided written notice to CIG the Paladin Board determines in good faith following consultation with Paladin’s legal and the NBCU Entities of its intent to furnish information or enter into discussions with financial advisors that such Person Acquisition Proposal is a Superior Proposal, and (iv4) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement and any related agreements Paladin OP 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter such agreement unless this Agreement shall have been terminated by Paladin OP in accordance with Section 9.1(i) and Paladin shall have paid the Break Fee to Parent. Nothing in this Section 7.2 or elsewhere in this Agreement shall prevent the Paladin Board from (i) at any time prior to obtaining Paladin Shareholder Approval and other than in response to an Acquisition Proposal, effecting a Change in Recommendation in the event that the Paladin Board has determined in good faith that the failure to take such action would be inconsistent with its fiduciary duties to the shareholders of intentPaladin under applicable Law, agreement or obligation with respect to, any Competing Transaction.
(dii) The parties acknowledge taking and agree that nothing contained herein shall affect or in any way interfere with disclosing to the Company’s Obligation to comply with Paladin shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange ActAct with respect to an Acquisition Proposal or from making any required disclosure to Paladin’s shareholders under applicable Law, including Rule 14d-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither Paladin OP nor the Paladin Board shall be permitted to recommend that Paladin Shareholders tender any securities in connection with any tender or exchange offer (or otherwise approve, endorse or recommend any Acquisition Proposal) or withdraw or modify the Paladin Recommendation, unless in each case such tender or exchange offer constitutes a Superior Proposal and, in connection therewith, effects a Change in Recommendation and Paladin shall have paid the Break Fee to Parent. In addition, nothing in this Section 7.2(d) shall prohibit Paladin or Paladin OP from taking any action that any court of competent jurisdiction orders Paladin or Paladin OP to take pursuant to an Order. Notwithstanding the foregoing, not fewer than 36 hours prior to any determination by the Paladin Board that the proposal for an Acquisition Proposal is reasonably likely to lead to a Superior Proposal, Parent shall be notified orally and in writing of the Paladin Board’s intention to take such action and the Paladin Parties shall negotiate in good faith with Parent concerning any such new proposal by Parent prior to the expiration of such 36-hour period; provided, that Paladin shall promptly notify Parent thereafter if the Paladin Board determines that an Acquisition Proposal is not, and is unlikely to become, a Superior Proposal.
Appears in 2 contracts
Samples: Merger Agreement (Resource Real Estate Opportunity REIT, Inc.), Merger Agreement (Paladin Realty Income Properties Inc)
No Solicitation of Transactions. (ai) The Company agrees that neither From the date hereof, Borrower shall not, nor shall it authorize or permit ALSC to, nor shall it authorize or permit any Subsidiary nor any Representative of the directors, officers Borrower or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not ALSC to, directly or indirectly, (i) solicit, and it shall instruct and cause ALSC to instruct each such Representative of Borrower or ALSC not to solicit or initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may could reasonably be expected to lead toto any Takeover Proposal. Without limiting the generality of the foregoing, Borrower acknowledges and agrees that any Competing Transactionviolation of or the taking of any action inconsistent with any of the restrictions set forth in the preceding sentence by any Representative of Borrower or ALSC, whether or not such Representative is purporting to act on behalf of Borrower or ALSC or any of their Affiliates, shall be deemed to constitute a breach of this Section 6(g) by Borrower.
(ii) enter into Except as expressly permitted in Section 6(g)(iii), neither the Borrower’s Board of Directors nor any committee thereof shall: (A) withdraw or maintain modify the Borrower Recommendation in a manner adverse to Lender, or continue discussions adopt or negotiations with propose a resolution to withdraw or modify the Borrower Recommendation in a manner adverse to Borrower or take any Person other action that is or becomes disclosed publicly to indicate that the Borrower’s Board of Directors or any committee thereof does not support this Agreement and the Contemplated Transactions or does not believe that this Agreement and the Contemplated Transactions are in furtherance the best interests of the Borrower’s shareholders; (B) fail to reaffirm, without qualification, the Borrower Recommendation, or fail to state publicly, without qualification, that this Agreement and the Contemplated Transactions are in the best interests of the Borrower’s shareholders, within five Business Days after Lender requests in writing that such action be taken; (C) fail to announce publicly, within 10 Business Days after a tender offer or exchange offer relating to securities of Borrower shall have been commenced, that the Borrower’s Board of Directors recommends rejection of such inquiries tender or exchange offer; (D) fail to obtain issue, within 10 Business Days after a proposal Takeover Proposal is publicly announced, a press release announcing its opposition to such Takeover Proposal; (E) approve, endorse or offer for a Competing Transaction, (iii) agree to, approve or endorse recommend any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction Takeover Proposal; or (ivF) authorize resolve or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, propose to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable action described in clauses (and in any event within one A) through (1E) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of this sentence (each of the party making such proposal or offer or inquiry or contact foregoing actions described in clauses (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives A) through (including, without limitation, any investment banker, attorney or accountant retained by it or any SubsidiaryF) to, immediately cease and cause of this sentence being referred to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiaryas “Adverse Recommendation Change.”
(biii) Notwithstanding anything to the contrary contained in this Section 10.056(g), at any time prior to the Exchange Offer Closing Initial Closing, the Borrower’s Board of Directors may effect, or the Exchange Offer Expirationcause Borrower to effect, as applicablethe case may be, an Adverse Recommendation Change if: (A) after the Board may furnish information todate of this Agreement, and enter into discussions with, a Person who has made an unsolicited, writtenbona fide, written offer to effect a transaction of the type referred to in the definition of the term Superior Proposal is made to Borrower and is not withdrawn; (B) such unsolicited, bona fide proposal fide, written offer was not obtained or made as a direct or indirect result of a breach of (or any action inconsistent with) this Agreement or any “standstill” or similar agreement under which Borrower or ALSC has any rights or obligations; (C) Borrower provides Lender the terms and conditions of the offer regarding a Competing Transaction(including copies of any written offers, proposals or presentations) that is the basis of the potential action by Borrower’s Board of Directors and the identity of the Person making the offer; (D) the Borrower’s Board has (i) determinedof Directors determines in good faith, in its good faith judgment (after consultation with its a reputable and experienced financial advisor)advisor and outside legal counsel, that such proposal or offer constitutes a Superior Proposal; (E) the Borrower’s Board of Directors does not effect, or cause Borrower to effect, an Adverse Recommendation Change at any time within five Business Days after Lender receives written notice from Borrower confirming that the Borrower’s Board of Directors has determined that such offer is reasonably likely a Superior Proposal; (F) during such five Business Day period, if requested by Lender, the Borrower engages in good faith negotiations with Lender to amend this Agreement in such a manner that the offer that was determined to constitute a Superior Proposal no longer constitutes a Superior Proposal; (G) at the end of such five Business Day period, such offer has not been withdrawn and continues to constitute a Superior Proposal (iitaking into account any changes to the terms of this Agreement proposed by Lender as a result of the negotiations required by clause (F) determinedor otherwise); and (H) the Borrower’s Board of Directors determines in good faith, in its good faith judgment after consultation with outside legal counsel (who may be obtaining and taking into account the Company’s regularly engaged advice of outside legal counsel), that, in light of such Superior Proposal, failure to make an Adverse Recommendation Change would be inconsistent with the furnishing Borrower’s Board of such information or entering into discussions is required to comply with its Directors fiduciary obligations to the Company and its stockholders duties under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement Law (it being understood that in the event of any material revision to the terms of a Superior Proposal or any change to the consideration offered under a Superior Proposal, the provisions of this Section 6(g)(iii) shall apply to such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party revised or having the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which changed offer as if it is were a partynew offer hereunder).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Loan, Convertible Preferred Stock and Convertible Senior Secured Note Purchase Agreement (Vespoint LLC), Loan, Convertible Preferred Stock and Convertible Senior Secured Note Purchase Agreement (Midwest Holding Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the shall not, directly or indirectly, and shall instruct its officers, directors, officers employees, subsidiaries, agents or employees of it advisors or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) it), not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action knowingly to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) or enter into or maintain or continue discussions or negotiations negotiate with any Person person in furtherance of such inquiries or to to
obtain a proposal or offer for a Competing Transaction, (iii) or agree to, approve to or endorse any Competing Transaction Transaction, or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its SubsidiariesCompany Subsidiary, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its SubsidiariesCompany Subsidiary, to take any such action; PROVIDED, HOWEVER, that nothing contained in this Section 6.06 shall prohibit the board of directors of the Company from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.06 or (ii) with regard to such an offer, after receiving the advice of outside counsel to the effect that the board of directors of the Company is required to do so in order to discharge properly its fiduciary duties, considering, negotiating and approving and recommending to the shareholders of the Company an unsolicited bona fide written acquisition proposal which (A) was not received in violation of this Section 6.06, (B) if executed or consummated would be a Competing Transaction, (C) is not subject to financing and (D) the board of directors of the Company determines in good faith, after receipt of an opinion of its financial advisors to such effect, would result in a transaction more favorable to the Company's stockholders, than the transaction contemplated by this Agreement (any such acquisition proposal, a "SUPERIOR PROPOSAL"). The Company shall notify CIG and the NBCU Entities as promptly as practicable (Parent promptly, and in any no event within later than one (1) Business Day day after the Company attains knowledge thereof), orally and in writingreceipt, if any proposal or offer, or any inquiry or contact with any Person person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and immediately shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party party. The Company shall use its best efforts to ensure that its officers, directors, employees, subsidiaries, agents and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring advisors or other representatives (whether including, without limitation, any investment banker, attorney or accountant retained by merger, acquisition of stock or assets or otherwiseit) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf are aware of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary restrictions described in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)6.06.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Sun Healthcare Group Inc), Agreement and Plan of Merger and Reorganization (Sun Healthcare Group Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Subject to Section 6.1, none of the directors, officers or employees of it Catellus or any Catellus Subsidiary willshall, and that nor shall it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney authorize or accountant retained by it or any Subsidiary) not topermit, directly or indirectly, (i) any officer, trustee, director, employee, agent, investment banker, financial advisor, attorney, accountant, broker, finder or other agent, representative or Affiliate of Catellus or any Catellus Subsidiary to initiate, solicit, initiate encourage or encourage facilitate (including by way of furnishing nonpublic information), information or take any other action to facilitate, assistance) any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) other action that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) or enter into or maintain or continue participate in discussions or negotiations negotiate with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company Catellus shall, and shall direct cause the Catellus Subsidiaries and, to the extent within Catellus’s or any Catellus Subsidiary’s control, to, and Catellus and the Catellus Subsidiaries shall, take all actions reasonably necessary to cause its and its Subsidiaries’ their respective officers, trustees, directors, officers, employees, investment bankers, financial advisors, attorneys, accountants, brokers, finders and any other agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Affiliates to, immediately cease and cause to be terminated any discussions discussions, negotiations or negotiations communications with any Person that may have been conducted heretofore party or parties with respect to a any Competing Transaction. The Company Catellus shall not release be responsible for any Person fromfailure on the part of its officers, trustees, directors, employees, investment bankers, financial advisors, attorneys, accountants, brokers, finders and any other agents, representatives or waive any provision of, any confidentiality or standstill agreement Affiliates to which it is a party and the Company also agrees to comply with this Section 4.5(a). Catellus shall promptly request (if not previously requested) each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of acquisition, stock or assets sale, asset sale or otherwise) the Company Catellus, any Catellus Subsidiary or any SubsidiaryCatellus Joint Venture, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) destroy all confidential information heretofore furnished to such Person by or on behalf of the Company Catellus or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board Catellus Subsidiary or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing TransactionCatellus Joint Venture.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Catellus Development Corp), Merger Agreement (Prologis)
No Solicitation of Transactions. (a) The Company Each Stockholder agrees that neither it nor any Subsidiary nor that, between the date of this Agreement and the date of termination of the Merger Agreement in accordance with its terms, such Stockholder shall not, and shall not permit any of the its subsidiaries or any of its or its subsidiaries’ directors, officers or employees of it or any Subsidiary willto, and that it will shall use its best efforts to cause its and its Subsidiaries’ agentsthe investment bankers, advisors attorneys, accountants and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) of its subsidiaries not to, directly or indirectly, : (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action knowingly to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any constitutes a Competing Transaction, ; (ii) enter into or maintain or continue discussions or negotiations with any Person person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, ; (iii) agree to, approve approve, endorse or endorse recommend any Competing Transaction or enter into any letter of intent or other Contract contract, agreement or commitment contemplating or otherwise relating to any Competing Transaction Transaction; or (iv) authorize or permit any of the officers, directors or employees of the Company such Stockholder or any of its Subsidiariessubsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiariessuch Stockholder, to take any such action. The Company Each Stockholder shall notify CIG and the NBCU Entities Parent as promptly as practicable (and in any event within one (1) Business Day two days after the Company any senior executive of such Stockholder attains knowledge thereof); provided, orally and in writinghowever, that if such senior executive is a director of the Company, the notice to Parent required by this Section 3.02 shall be provided within one day after such senior executive attains knowledge thereof) if any proposal or offer, or any inquiry or contact with any Person person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments)contact. The Company shall, and Each Stockholder immediately shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transaction. The Company Nothing in this Section 3.02 shall not release prevent any Person fromStockholder from acting in such Stockholder’s capacity as an officer or director of the Company, or waive taking any provision of, any confidentiality or standstill agreement to which it is a party and action in such capacity (including at the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf direction of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a partyBoard).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Voting Agreement (Temasek Holdings LTD), Voting Agreement (Chippac Inc)
No Solicitation of Transactions. (a) The Company agrees that that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, neither it nor any Company Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willshall, and that it will shall cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any each Company Subsidiary) 's Representatives not to, directly or indirectly, (i) solicitinitiate, initiate solicit or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary (any such proposal or offer (includingbeing hereinafter referred to as a "Company Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiaries shall, without limitationand that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any proposal discussion with or offer provide any confidential information or data relating to its stockholders) that constitutesthe Company or any Company Subsidiary to any Person relating to a Company Acquisition Proposal or engage in any negotiations concerning a Company Acquisition Proposal, or may reasonably be expected otherwise facilitate any effort or attempt to lead make or implement a Company Acquisition Proposal or accept a Company Acquisition Proposal; provided, however, that nothing contained in this Section 6.04(a) shall prevent the Company or the Company Board from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Competing TransactionPerson in response to an unsolicited written Company Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited written Company Acquisition Proposal to the holders of Company Common Stock if, in any such case as is referred to in clause (ii) enter or (iii), (A) the Company Board concludes in good faith (after consultation with its financial advisors) that such Company Acquisition Proposal would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Company Acquisition Proposal being referred to in this Agreement as a "Company Superior Proposal"), (B) the Company Board determines in good faith after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel) that such action could reasonably be deemed to be necessary for it to act in a manner consistent with its fiduciary duties under applicable Law, (C) prior to providing any information or data regarding the Company or any Company Subsidiary to any Person or any of such Person's Representatives in connection with a Company Superior Proposal by such Person, the Company receives from such Person an executed confidentiality agreement on terms at least as restrictive on such Person as those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or any of such Person's Representatives or entering into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiariessuch Person's Representatives in connection with a Company Superior Proposal by such Person, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as notifies Parent promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making receipt of such Company Superior Proposal indicating, in connection with such notice, the name of such Person and attaching a copy of the proposal or offer or inquiry or contact (including material amendments or proposed material amendments)providing a complete written summary thereof. The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by agrees that it or any Subsidiary) to, will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transactionany Company Acquisition Proposal. The Company agrees that it shall not release keep Parent informed, on a current basis, of the status and terms of any Person from, such proposals or waive any provision of, any confidentiality or standstill agreement to which it is a party offers and the status of any such discussions or negotiations. The Company also agrees that it will take the necessary steps to promptly request inform each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf Subsidiary and each Representative of the Company or any SubsidiaryCompany Subsidiary of the obligations undertaken in this Section 6.04(a).
(b) Notwithstanding anything Parent agrees that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, neither it nor any Parent Subsidiary shall, and that it shall cause its and each Parent Subsidiary's Representatives not to, directly or indirectly, initiate, solicit or encourage any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the contrary assets or 20% or more of the equity securities of, Parent or any Parent Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Parent Acquisition Proposal"). Parent further agrees that neither it nor any Parent Subsidiaries shall, and that it shall cause its and each Parent Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to Parent or any Parent Subsidiary to any Person relating to a Parent Acquisition Proposal or engage in any negotiations concerning a Parent Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement a Parent Acquisition Proposal or accept a Parent Acquisition Proposal; provided, however, that nothing contained in this Section 10.05, prior to 6.04(b) shall prevent Parent or the Parent Board from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Offer Closing Act with regard to a Parent Acquisition Proposal; (ii) engaging in any discussions or the Exchange Offer Expirationnegotiations with, as applicable, the Board may furnish or providing any information to, and enter into discussions with, a any Person who has made in response to an unsolicited, written, bona fide proposal unsolicited written Parent Acquisition Proposal by any such Person; or offer regarding a Competing Transaction, and (iii) recommending such an unsolicited written Parent Acquisition Proposal to the Board has (i) determinedholders of Parent Common Stock if, in its any such case as is referred to in clause (ii) or (iii), (A) the Parent Board concludes in good faith judgment (after consultation with its financial advisoradvisors) that such Parent Acquisition Proposal would, if consummated, result in a transaction more favorable to holders of Parent Common Stock than the transaction contemplated by this Agreement (any such more favorable Parent Acquisition Proposal being referred to in this Agreement as a "Parent Superior Proposal"), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (iiB) determined, the Parent Board determines in its good faith judgment after consultation with outside independent legal counsel (who may be the Company’s Parent's regularly engaged outside independent legal counsel), that, ) that such action could reasonably be deemed to be necessary for it to act in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply a manner consistent with its fiduciary obligations to the Company and its stockholders duties under applicable Law, (iiiC) provided written notice prior to CIG and the NBCU Entities of its intent to furnish providing any information or enter into discussions data regarding Parent or any Parent Subsidiary to any Person or any of such Person's Representatives in connection with a Parent Superior Proposal by such Person and (iv) obtained Person, Parent receives from such Person an executed confidentiality agreement on terms at least as restrictive on such Person as those contained in the Confidentiality Agreement and (it being understood that D) prior to providing any information or data to any Person or any of such confidentiality agreement and Person's Representatives or entering into discussions or negotiations with any related agreements shall not include Person or any provision calling for any exclusive right to negotiate of such Person's Representatives in connection with a Parent Superior Proposal by such Person, Parent notifies the Company promptly of the receipt of such Parent Superior Proposal indicating, in connection with such party notice, the name of such Person and attaching a copy of the proposal or having the effect of prohibiting offer or providing a complete written summary thereof. Parent 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 Parent Acquisition Proposal. Parent agrees that it shall keep the Company from satisfying its informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations. Parent agrees that it will take the necessary steps to promptly inform each Parent Subsidiary and each Representative of Parent or any Parent Subsidiary of the obligations under the Transaction Agreements to which it is a partyundertaken in this Section 6.04(b).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Covance Inc), Merger Agreement (Parexel International Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any From the date of this Agreement until the earlier of the directorsREIT Merger Effective Time and the termination of this Agreement pursuant to Section 9.01(a), officers or employees of it or any Subsidiary willthe Company Parties shall not, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) shall not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officerstheir Subsidiaries, directors or employees of the Company or any of its Subsidiariesor their officers, trustees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the “Representatives”), directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries, proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, any Acquisition Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to an Acquisition Proposal) regarding, or that reasonably may be expected to lead to, an Acquisition Proposal or (iii) approve or recommend, or publicly propose to approve or recommend, an Acquisition Proposal or enter into any merger agreement, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar binding agreement relating to an Acquisition Proposal or requiring the Company to terminate this Agreement (an “Acquisition Agreement”), except as permitted by Section 7.04(d) (except for a confidentiality agreement in compliance with Section 7.04(b)).
(b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Acquisition Proposal from a third party (which was not solicited, initiated, knowingly encouraged or knowingly facilitated in violation of Section 7.04(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to the Company and the Subsidiaries of the Company to the Person who made such Acquisition Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Acquisition Proposal, if, in the case of either clause (x) or (y), (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Acquisition Proposal with confidentiality provisions no less favorable to such Third Party than the Company Confidentiality Agreement is to Parent, (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal and (C) concurrently with furnishing or causing to be furnished non-public information with respect to the Company and the Subsidiaries of the Company to a Third Party, the Company furnishes or causes to be furnished such information to Parent to the extent not previously provided. The Company Parties shall not, and shall cause each of the Company’s Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company Parties from providing such information to Parent.
(c) The Company Parties shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Acquisition Proposal, or any material modification or amendment to any Acquisition Proposal, by any Company Party, any Subsidiary of the Company or any Representative, (ii) a summary of the material terms and conditions of such Acquisition Proposal, and (iii) the identity of such Person or entity making any such Acquisition Proposal. The Company Parties shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Acquisition Proposal. The Company Parties shall not, and shall cause each of the Company’s Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company Parties from providing such information to Parent.
(d) Subject to this Section 7.04(d) and to Section 9.01(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Board Recommendation, or the approval or recommendation of any committee of the Company Board of the Mergers (ii) approve or recommend, or propose publicly to approve or recommend an Acquisition Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 7.04(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of its SubsidiariesSubsidiaries to enter into any Acquisition Agreement (other than a confidentiality agreement in compliance with Section 7.04(b)). Notwithstanding the foregoing, at any time prior to take any such action. The receipt of the Company shall notify CIG and Shareholder Approval, the NBCU Entities as promptly as practicable (and in any event within one Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of an Acquisition Proposal if the Company Board determines in good faith after consultation with its outside legal counsel, that failure to take such action would be inconsistent with the trustees’ duties to the Company or its shareholders under applicable Law or (2) in response to a bona fide written Acquisition Proposal (which was not solicited, initiated, knowingly encouraged or knowingly facilitated in violation of Section 7.04(a)) received after the date hereof, take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 9.01(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Acquisition Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day after following Parent’s receipt of written notice from the Company attains knowledge thereofthat the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions irrevocably committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Acquisition Proposal remains a Superior Proposal relative to the Mergers, as supplemented by any Counterproposal (as defined below), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying . Any such written notice shall specify the material terms and conditions thereof of such applicable Acquisition Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Acquisition Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this Section 7.04(d)). During such three (3) Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Acquisition Proposal (a “Counterproposal”). For purposes of clarification, the statement by the Company that it has received an Acquisition Proposal, that the Company Board will consider such Acquisition Proposal and that the Company Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Company Operating Partnership and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and Company’s Subsidiaries shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, cease immediately cease and cause to be terminated any discussions and all existing activities, discussions, solicitations or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transactionan Acquisition Proposal by or on behalf of the Company, the Company Operating Partnership or any of the Representatives. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement use its reasonable commercial efforts to which it is a party and the Company also agrees to promptly request cause (including by written request) each Person that with whom it has heretofore executed a confidentiality agreement within the twelve (12) months prior to the date hereof in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, Acquisition Proposal to return (or if permitted by the applicable confidentiality agreement, destroy) destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Company Operating Partnership or any Subsidiaryof the Representatives.
(bf) Notwithstanding anything Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information to, and enter into discussions with, holders of Company Common Shares a Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation position contemplated by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend an Acquisition Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting favorably on the merits of an Acquisition Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) a statement expressly recommending that its shareholders reject an Acquisition Proposal or (C) if the statements are accompanied by an express reaffirmation of the Company Board Recommendation to its shareholders in favor of the REIT Merger.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the Maryland REIT Law) or otherwise cause such restrictions not to apply.
Appears in 2 contracts
Samples: Merger Agreement (GMH Communities Trust), Merger Agreement (GMH Communities Trust)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willand its subsidiaries will not, and that it the Company will cause instruct its and its Subsidiaries’ agentssubsidiaries' officers, advisors directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives representatives, agents or affiliates (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary"Company Representatives") not to, directly or indirectly, (i) solicitinitiate, initiate solicit or encourage (including by way of furnishing nonpublic information), information or assistance) or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any a Competing TransactionTransaction (as defined below), (ii) enter into or maintain or continue discussions or negotiations negotiate with any Person person or entity in furtherance of such inquiries or relating to or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve to or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officersTransaction, directors or employees of and the Company or any of shall cause its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by subsidiaries and the Company or any of its Subsidiaries, Representatives not to take any such actionaction in the foregoing clauses (i) through (iii); provided, however, that nothing contained in this Section 8.10 shall prohibit the Board of Directors of the Company prior to shareholder approval of the Mergers at the Shareholders Meeting or any adjournment or postponement thereof from (A) furnishing information to, or engaging in discussions or negotiations with, any person that makes an unsolicited proposal (believed by the Board of Directors to be bona fide) regarding a potential Competing Transaction if (1) the Board of Directors of the Company, after consultation with independent legal counsel, determines in good faith that such action is required for the Board of Directors of the Company to comply with its fiduciary duties to shareholders under applicable law, (2) such Competing Transaction is or is reasonably likely to result in a Superior Proposal, and (3) prior to furnishing such information to such person or entity, the Company receives from such person or entity an executed confidentiality agreement with terms materially no less favorable to the Company than those contained in the Confidentiality Agreement; or (B) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or Section 1203 of the CGCL (including, without limitation, the making of public disclosure as may be necessary or advisable under applicable securities laws) and provided further that the foregoing actions described in this provision shall not constitute a breach by the Company of this Agreement. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, advise Merger Sub if any such proposal or offer, or any inquiry or contact is made with any Person person or entity with respect thereto, regarding a Competing Transaction is made, specifying and shall inform Merger Sub of the material terms and conditions thereof of such proposal or offer for a Competing Transaction and the identity of such person or entity (if disclosure of such identity is not prohibited by the party making terms of such proposal or offer or inquiry or contact (including material amendments or proposed material amendmentsproposal). The Company shall, and shall direct or cause its subsidiaries and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) the Company Representatives to, cease immediately cease and cause to be terminated any all activities, discussions or negotiations and negotiations, if any, with any Person that may have been person or entity conducted heretofore prior to the date of this Agreement with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything For purposes of this Agreement "Competing Transaction" shall mean any of the following involving the Company or any of its subsidiaries: (a) any merger, consolidation, share exchange, business combination, recapitalization, reclassification or other similar transaction or any issuance or purchase of securities which results in the shareholders of the Company immediately prior to such transaction (excluding any shareholders that may be proposing the Competing Transaction to the contrary in this Section 10.05Company) beneficially owning shares representing less than a majority of the voting power or common equity after such transaction; (b) any sale, prior to lease, exchange, mortgage, pledge, transfer or other disposition of 30% or more of the Exchange Offer Closing or fair market value of the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light assets of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Lawsubsidiaries, (iii) provided written notice to CIG and the NBCU Entities taken as a whole, in a single transaction or series of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
transactions; (c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw tender offer or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee exchange offer for more than 45% of the Transaction Agreements to which outstanding Shares of the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, Company; or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect any public announcement of an agreement, proposal, plan or in intention to do any way interfere with of the Company’s Obligation to comply with Rule 14d-9 under the Exchange Actforegoing.
Appears in 2 contracts
Samples: Merger Agreement (Vdi Multimedia), Merger Agreement (VMM Merger Corp)
No Solicitation of Transactions. (a) The Until the earlier of the Effective Time and termination of this Agreement pursuant to ARTICLE VIII, except as set forth in Section 6.04(b), the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary its Subsidiaries will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives Representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Group Company), not to, in each case, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic informationinformation concerning any Group Company), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholdersshareholders) that constitutes, or may that in the Company’s good faith judgment could reasonably be expected to lead to, any Competing Transaction, (ii) enter into or into, maintain or continue discussions or negotiations with with, or provide any Person nonpublic information concerning any Group Company to, any person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve approve, endorse or endorse recommend any Competing Transaction or enter into any letter of intent or other Contract or commitment contemplating or otherwise relating to any Competing Transaction Transaction, (iv) release any third party from, or waive any provision of, any confidentiality or standstill agreement to which the Company is a party, or (ivv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative Representative retained by or acting directly or indirectly under the direction of the Company or any of its Subsidiaries, to take any such actionaction set forth in clauses (a)(i) — (a)(iv) of this Section 6.04. The Company shall notify CIG and the NBCU Entities Parent as promptly as practicable (and in any event within one twenty-four (124) Business Day hours after the Company attains has knowledge thereof), orally and in writing, if of any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is madeor that in the Company’s good faith judgment would reasonably be expected to lead to a Competing Transaction, specifying (x) the material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written proposals or offers, including proposed agreements, (y) the identity of the party making such proposal or offer or inquiry or contact offer, and (including material amendments or proposed material amendments)z) whether the Company has any intention to provide confidential information to such person. The Company shallshall keep Parent informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations), of the status and terms of any such proposal or offer and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material terms and conditions thereof). Without limiting the foregoing, the Company shall (A) promptly notify Parent orally and in writing if it determines to initiate actions concerning a proposal, offer, inquiry, contact or request, in each case as permitted by this Section 6.04, and (B) provide Parent with twenty-four (24) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board or members of the Special Committee) of any meeting of the Company Board or Special Committee at which the Company Board or Special Committee, as applicable, is reasonably expected to consider any Competing Transaction. The Company immediately shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable6.04, the Company Board may furnish information (including nonpublic information) to, and enter into discussions with, a Person person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, Transaction (provided that such bona fide proposal or offer shall not have been obtained in violation of Section 6.04(a) and the Company shall have complied with the requirements of Section 6.04(a) with respect to such proposal or offer), if the Company Board has (i) determined, in its good faith judgment upon the unanimous recommendation of the Special Committee (after consultation with its a financial advisoradvisor of internationally recognized reputation and independent legal counsel), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel upon the unanimous recommendation of the Special Committee (who may be the Company’s regularly engaged outside upon advice by independent legal counsel), that, in light of such Superior Proposalproposal, the furnishing of failure to furnish such information or entering enter into discussions is required to comply with would violate its fiduciary obligations to the Company and its stockholders shareholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities Parent of its intent to furnish information or enter into discussions with such Person person at least two (2) Business Days prior to taking any such action, and (iv) obtained from such Person 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); provided that the Transaction Agreements Company shall concurrently make available to which it Parent any material information concerning the Company and the Subsidiaries that is a party)provided to any such person and that was not previously made available to Parent or its Representatives.
(c) Except as otherwise provided set forth in this AgreementSection 6.04(c), neither the Company Board nor any committee thereof shall withdraw change, withhold, withdraw, qualify or modify, or publicly propose to withdraw change, withhold, withdraw, qualify or modify, in a manner adverse to CIG and the NBCU EntitiesParent or Merger Sub, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which Company Recommendation (a “Change in the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, Recommendation”) or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
. Notwithstanding the foregoing, if the Company Board determines, in its good faith judgment upon the unanimous recommendation of the Special Committee, prior to obtaining the Requisite Company Vote and upon advice by independent legal counsel, that failure to make a Change in the Company Recommendation would violate its fiduciary obligations to the Company and its shareholders under applicable Law, the Company Board may, upon the unanimous recommendation of the Special Committee, recommend a Superior Proposal, but only (di) The parties acknowledge if the Company shall have complied with the requirements of Section 6.04(a) and agree 6.04(b) with respect to such proposal or offer; (ii) after (A) providing at least five (5) Business Days’ written notice to Parent (a “Notice of Superior Proposal”) advising Parent that nothing contained herein the Company Board has received a Superior Proposal, specifying the material terms and conditions 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 the manner in which it intends (or may intend) to do so, it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to so deliver such notice shall affect not constitute a Change in the Company Recommendation, (B) negotiating with and causing its financial and legal advisors to negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such third party proposal or offer would cease to constitute a Superior Proposal, and (C) permitting Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and any adjustments with respect thereto (to the extent Parent desires to make such presentation); provided that any material modifications to such third party proposal or offer that the Company Board has determined to be a Superior Proposal shall be deemed a new Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.04, provided, further, that with respect to the new written notice to Parent, the Superior Proposal Notice Period shall be deemed to be a three (3) Business-Day period rather than the five (5) Business-Day period first described above; and (iii) if Parent does not, within five (5) Business Days of Parent’s receipt of the Notice of Superior Proposal, make an offer that the Company Board determines, in any way interfere its good faith judgment upon the unanimous recommendation of the Special Committee (after consultation with a financial advisor of internationally recognized reputation and independent legal counsel) to be at least as favorable to the Company’s Obligation to comply with Rule 14d-9 under the Exchange Actshareholders as such Superior Proposal.
Appears in 2 contracts
Samples: Merger Agreement (Wang Benson Haibing), Merger Agreement (Taomee Holdings LTD)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary willshall not, and that it will shall cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Subsidiaries not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or use its reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees, agentsadvisors, advisors attorneys, accountants, investment bankers and other representatives agents (includingwith respect to any Person, without limitationthe foregoing Persons are referred to herein as such Person’s “Representatives”) not to, (i) solicit, initiate, knowingly encourage or facilitate any inquiry with respect to, or the making, submission or announcement of, any investment bankerTakeover Proposal or (ii) engage in, attorney continue or accountant retained by it or otherwise participate in any Subsidiary) to, immediately cease and cause to be terminated any substantive discussions or negotiations with regarding, or furnish to any Person that may have been conducted heretofore any non-public information or data with respect to a Competing Transaction. The Company shall not release any Person fromto, or waive take any provision ofother action to facilitate or encourage any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Takeover Proposal. Notwithstanding the foregoing, at any confidentiality or standstill agreement time prior to which it is a party and receipt of the Requisite Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring Vote, if (whether by merger, acquisition of stock or assets or otherwisei) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in has not breached this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information to6.2 in any material respect, 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 has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, the Company receives a bona fide written Takeover Proposal from a third party that the Company Board determines in its good faith judgment (after consultation with outside legal counsel (who and a financial advisor of nationally recognized reputation) constitutes or may reasonably be the Company’s regularly engaged outside legal counsel), that, in light of such expected to lead to a Superior Proposal, the furnishing of such Company may (1) furnish information or entering into discussions is required to comply (including non-public information) with its fiduciary obligations respect to the Company and its stockholders under Subsidiaries to the Person making such Takeover Proposal (provided that the Company shall only provide or permit to be provided to such Person any non-public information with respect to the Company or any of its Subsidiaries if (x) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information to such Person, the Company notifies Parent of such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (iii2) provided written notice to CIG participate in substantive discussions and the NBCU Entities of its intent to furnish information or enter into discussions negotiations with such Person and (iv) obtained from regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an executed confidentiality agreement (it being understood that such confidentiality agreement “Other Confidentiality Agreement”). The Company and any related agreements its Subsidiaries shall not include any provision calling for any exclusive right use their reasonable best efforts to negotiate with such party or having inform their Representatives of the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which it is a party)restrictions described in this Section 6.2.
(cb) Except as otherwise provided in expressly permitted by this AgreementSection 6.2(b), neither (i) the Company Board nor any (or the applicable committee thereof thereof) shall withdraw not (x) fail to make, withdraw, modify or modifyamend, or publicly propose or resolve to withdraw withhold, withdraw, modify or modifyamend, in a manner adverse to CIG and the NBCU EntitiesParent or Merger Sub, the approval Company Recommendation or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction(y) approve, including the Tender Offer and the Reverse Stock Split, or approve endorse or recommend, or cause publicly propose or permit resolve to approve, endorse or recommend, to the Company’s stockholders a Takeover Proposal (other than with Parent) (any action described in clause (x) or clause (y) immediately above being referred to herein as a “Change in Recommendation”) and (ii) the Company shall not, and shall cause its Subsidiaries not to, enter into, and the Company Board (or the applicable committee thereof) shall not authorize the Company or any of its Subsidiaries to enter into into, any merger agreement, letter of intent, agreement in principle, stock purchase agreement, asset purchase agreement or obligation with respect tostock exchange agreement, any Competing Transaction.
option agreement or other similar agreement, in each case providing for or relating to a Takeover Proposal (d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.each, a
Appears in 2 contracts
Samples: Merger Agreement (Altria Group, Inc.), Agreement and Plan of Merger (Ust Inc)
No Solicitation of Transactions. Stockholder (aand its subsidiaries and affiliates) The Company agrees shall not, and Stockholder (and its subsidiaries and affiliates) shall use their reasonable best efforts to ensure that neither it nor any Subsidiary nor any of the their respective officers, directors, officers or employees of it or any Subsidiary willemployees, representatives and that it will cause its and its Subsidiaries’ agents, advisors and other representatives agents (including, without limitationbut not limited to, any investment bankerbankers, attorney or accountant retained by it or any Subsidiaryattorneys and accountants) not todo not, directly or indirectly, (i) encourage, solicit, participate in or initiate discussions or encourage (including by way of furnishing nonpublic information)negotiations with, or take provide any other action to facilitateinformation to, any inquiries corporation, partnership, person or the making other entity or group (other than Parent, any of any proposal its affiliates or offer (including, without limitation, representatives) concerning any proposal or offer to its stockholders) that constitutes, acquire all or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any substantial part of the officers, directors business or employees properties of the Company or any of its Subsidiaries, subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by capital stock of the Company or any of its Subsidiariessubsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after whether by merger, tender offer, exchange offer, sale of assets or similar transaction involving the Company attains knowledge thereofor any subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"), orally and unless the Company is permitted to do so in writing, if any proposal or offer, or any inquiry or contact accordance with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making Merger Agreement; provided, that the foregoing shall not apply to any directors of the Company in their capacity as such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ who are also directors, officers, employees, agentsrepresentatives or agents of Stockholder (the "Donnelley Directors"), advisors it being acknowledged and agreed that the Donnelley Directors are subject to the terms and conditions set forth in the Merger Agreement in their capacity as such. Notwithstanding the foregoing, prior to the later of (i) 11:59 p.m., Chicago time, on March 30, 1998 and (ii) the expiration of the applicable waiting periods under the HSR Act (as defined in the Merger Agreement), Stockholder may furnish information concerning the Company and its subsidiaries to any corporation, partnership, person or other representatives entity or group pursuant to appropriate confidential agreements with terms substantially similar to those contained in the Confidentiality Agreement (includingas defined in the Merger Agreement), without limitationand may negotiate and participate in discussions and negotiations with such entity or group concerning an Acquisition Proposal that constitutes a Superior Proposal (as defined in the Merger Agreement). Stockholder shall, any investment banker, attorney or accountant retained by it or any Subsidiary) and shall cause each of its affiliates to, immediately cease and cause to be terminated any existing activities, discussions or negotiations by Stockholder, any of its affiliates or any officer, director, employee or affiliate of, or investment banker, attorney, accountant or other advisor or representative of, Stockholder or any of its affiliates with any Person that may have been parties conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) foregoing. The parties acknowledge and agree that nothing contained herein the Company shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.not be deemed an affiliate of Stockholder for purposes of this Section 4.2
Appears in 2 contracts
Samples: Stock Purchase Agreement (Metromail Corp), Stock Purchase Agreement (Great Universal Acquisition Corp)
No Solicitation of Transactions. (a) The Company, the Principals and the Principal Holdcos shall ensure that no Group Company agrees that neither it nor any Subsidiary nor any and none of the directors, directors or officers or employees of it or any Subsidiary willGroup Company shall, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives each Representative of the Company (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Group Company), shall be directed not to, and each Selling Shareholder shall not, in each case, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic informationinformation in a manner designed to encourage), or take any other action to facilitate, any inquiries or discussions (including with any of the Company’s shareholders) or the making of any proposal or offer Competing Proposal (including, without limitation, any proposal or offer to its stockholdersshareholders) that constitutes, or may would reasonably be expected to lead to, any Competing TransactionProposal, or (ii) enter into or into, maintain or continue discussions or negotiations with with, or provide any Person nonpublic information relating to any Group Company or the Transactions to, any person or entity in furtherance of such inquiries connection with, or in order to obtain a proposal obtain, an Competing Proposal, or offer for a Competing Transaction, (iii) agree to, approve approve, adopt, endorse or recommend (or publicly propose to agree to approve, adopt, endorse or recommend) any Competing Transaction Proposal, or enter into any letter of intent intent, confidentiality agreement, term sheet, Contract, commitment, obligation, arrangement or other Contract understanding contemplating or otherwise relating to to, or consummate, any Competing Transaction Proposal, or (iv) authorize or permit any of the officers, directors or employees Representatives of the any Group Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such actionaction set forth in clauses (i) through (iii) above. The Company shall notify CIG and the NBCU Entities Purchaser in writing as promptly as practicable (and in any event within one twenty-four (124) Business Day hours after the Company attains has knowledge thereof), orally and in writing, if of any proposal or offer, or any request for information or other inquiry or contact with any Person with respect theretorequest, regarding a that could reasonably be expected to lead to an Competing Transaction is madeProposal, specifying (x) the material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shallcontact, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiaryz) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and whether the Company also agrees has determined to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all provide confidential information heretofore furnished to such Person by or on behalf person in violation of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)7.02.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Share Purchase Agreement (Baidu, Inc.), Share Purchase Agreement (Alibaba Group Holding LTD)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toTarget shall not, directly or indirectly, (i) through any officer, director, employee, agent or otherwise and shall not permit any Subsidiary or any officer, director, employee or agent to, solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making submission of any proposal or offer from any person relating to any acquisition or purchase of all or any material portion of the assets of, or any equity interest in, the Target or any Subsidiary or any merger, consolidation, share exchange, business combination or other similar transaction with the Target or any Subsidiary (includinga "BUSINESS COMBINATION PROPOSAL") or participate in any negotiations regarding, without limitationor furnish or make available to any other person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any proposal effort or offer attempt by any other person to its stockholders) do or seek or provide access to the properties, books or records of Target or any Subsidiary to any person in connection with, any of the foregoing; PROVIDED, HOWEVER, that constitutesnothing contained in this Section 6.05 shall prohibit the Target from complying with Rule 14e-2 and Rule 14d-9 under the Exchange Act or furnishing information to, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter entering into or maintain or continue discussions or negotiations with or providing access to the properties, books or records of Target or any Person Subsidiary to any person in furtherance connection with an unsolicited Business Combination Proposal by such person received by the Target after the date of such inquiries or the Agreement, if, and only to obtain a proposal or offer for a Competing Transactionthe extent that, (iiia) agree a majority of the disinterested members of the Target's Board of Directors, after consultation with Target's independent financial advisor and based on the advice of outside counsel, determines in good faith that such action is required in order for the Target's Board of Directors not to breach its fiduciary duties to shareholders imposed by law and (b) prior to furnishing such information to, approve or endorse any Competing Transaction entering into discussions or enter into any letter of intent or other Contract relating to any Competing Transaction or negotiations with, such person, the Target (ivi) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities gives Acquiror as promptly as practicable (prior written notice of the Target's intention to furnish such information or begin such discussions, the identity of such person and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms of such Business Combination Proposal and conditions thereof and (ii) receives from such person an executed confidentiality agreement on terms no less favorable to the identity Target than those contained in the Confidentiality Agreement. The Target shall keep Acquiror informed of the party material details of any such Business Combination Proposal or any significant indication of interest in making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments)any Business Combination Proposal as promptly as practicable. The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause Target agrees not to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it the Target is a party party. The Target immediately shall cease and the Company also agrees cause to promptly request each Person that has be terminated all existing discussions or negotiations with any parties conducted heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or respect to any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiaryforegoing.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, Neither the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing Directors of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board Target nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU EntitiesAcquiror or Acquiror Sub, the approval or recommendation by the such Board of Directors or any such committee of the Transaction Agreements to which Offer, this Agreement or the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, Merger or (ii) approve or recommend, or cause propose to approve or permit the Company to enter into any letter of intent, agreement or obligation with respect torecommend, any Competing Transaction.
Business Combination Proposal. Notwithstanding the foregoing, the Board of Directors of Target, to the extent required by the fiduciary obligations thereof, as determined in good faith by a majority of the disinterested members thereof based on the advice of outside counsel, may approve or recommend (dand, in connection therewith, withdraw or modify its approval or recommendation of the Offer, this Agreement and the Merger) The parties acknowledge a Superior Proposal. For purposes of this Agreement, "SUPERIOR PROPOSAL" means a bona fide Business Combination Proposal made by a third party to acquire, directly or indirectly, more than fifty percent 50% of the Shares then outstanding or all or a material portion of the assets of Target and agree its subsidiaries and otherwise on terms that nothing contained herein shall affect or a majority of the disinterested members of the Board of Directors of Target determines in any way interfere its good faith judgment (after consultation with the Company’s Obligation Target's independent financial advisor) to comply be more favorable to the holders of Shares than the Offer and the Merger from a financial perspective and for which financing, to the extent required, is then committed or which, in the good faith judgment of a majority of such disinterested members (after consultation with Rule 14d-9 under the Exchange ActTarget's independent financial advisor, is reasonably likely to be financed by such third party.
Appears in 2 contracts
Samples: Merger Agreement (Exigent International Inc), Merger Agreement (Harris Corp /De/)
No Solicitation of Transactions. (a) The Within one (1) Business Day following the date hereof, the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its Subsidiaries and its Subsidiaries’ agentsand their respective Representatives to immediately cease all discussions and negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal and request such Person to promptly return or destroy all confidential information concerning the Company and its Subsidiaries made available to such Person in connection with a potential Acquisition Proposal. Except as expressly permitted by Section 5.6(b), advisors from the date hereof until the earlier of the Effective Time or the termination of this Agreement, the Company will not and other representatives (including, without limitation, any investment banker, attorney will not authorize or accountant retained by it or knowingly permit any Subsidiary) not , or Representative to, directly or indirectly, :
(i) initiate, solicit, initiate or propose, knowingly encourage (including by way of furnishing nonpublic providing information), ) or take any other action to facilitate, knowingly facilitate any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may would reasonably be expected to lead to, any Competing Transaction, an Acquisition Proposal;
(ii) enter into engage in, continue or maintain or continue otherwise participate in any discussions (other than to refer to this Agreement) or negotiations with regarding, or provide any non-public information or data concerning, or afford access to the business, properties, assets, books, records or personnel of, the Company or any of its Subsidiaries to any Person in furtherance of such inquiries relating to, any Acquisition Proposal or to obtain a any proposal or offer for a Competing Transaction, that would reasonably be expected to lead to an Acquisition Proposal;
(iii) agree toapprove, approve endorse, recommend or endorse any Competing Transaction execute or enter into any letter of intent intent, agreement in principle, merger agreement, acquisition agreement or other Contract similar agreement (which, for the avoidance of doubt, excludes any Acceptable Confidentiality Agreement) relating to an Acquisition Proposal or any Competing Transaction proposal or offer that would reasonably be expected to lead to an Acquisition Proposal; or
(iv) authorize resolve or permit agree to do any of the officers, directors foregoing. The Company represents and warrants that neither it nor any of its Subsidiaries is a party to any Contract containing a standstill or employees similar obligation of a third party to the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of Subsidiaries that does not terminate in accordance with its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf public announcement of the Company or any Subsidiaryexecution of this Agreement.
(b) Notwithstanding anything to the contrary contained in Section 5.6(a), at any time prior to, but not after, obtaining the Company Required Vote, the Company may:
(i) provide information or afford access to the business, properties, assets, books, records, or to any personnel of the Company in response to a request therefor to a Third Party (and its Representatives and financing sources) who has made a bona fide written Acquisition Proposal after the date hereof that was not solicited in material violation of this Section 10.055.6 if and only if, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicableproviding such information, the Board may furnish Company has received from such Third Party so requesting such information to, an executed Acceptable Confidentiality Agreement; provided that the Company shall promptly (and enter into in any event within twenty-four (24) hours) make available to Parent any non-public information concerning the Company and its Subsidiaries that is provided to such Third Party making such Acquisition Proposal that is given such access and that was not previously made available to Parent or its Representatives; or
(ii) engage or participate in any discussions with, or negotiations with a Person Third Party who has made such an unsolicited, written, unsolicited bona fide proposal written Acquisition Proposal; provided that, prior to taking any action described in Section 5.6(b)(i) or offer regarding Section 5.6(b)(ii), (A) the Company Board of Directors (or a Competing Transactioncommittee thereof) shall have determined in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, and (B) the Company Board has of Directors (or a committee thereof) shall have determined in good faith, based on the information then available and after consultation with its independent financial advisor and outside legal counsel, that such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal; provided, further, that the Company and its Representatives may contact such Third Party to clarify the terms and conditions of such Acquisition Proposal prior to making any such determinations.
(c) Except as expressly provided by Section 5.6(d), Section 5.6(e) or Section 5.6(f), at any time after the date hereof, neither the Company Board of Directors nor any committee thereof nor any of the directors, whether acting in their individual capacity or as a director, shall:
(i) determined(A) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent or the Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend to the Company Common Stockholders or propose to adopt, approve or recommend to the Company Common Stockholders an Acquisition Proposal, (C) fail to make a Required Reaffirmation within seven (7) Business Days after Parent so requests in writing; provided that such failure shall not be a Company Adverse Recommendation Change if the Company shall have previously made a Required Reaffirmation on two (2) or more occasions or within the thirty (30) days immediately preceding such request; provided, further, that such failure shall not be a Company Adverse Recommendation Change if there shall not have been, at the time of such request, a publicly announced Acquisition Proposal that has not been withdrawn, (D) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal or (E) fail to include the Company Recommendation in the Proxy Statement (any action described in clauses (A) through (E), a “Company Adverse Recommendation Change”); provided that, for the avoidance of doubt, none of (1) the determination by the Company Board of Directors (or a committee thereof) that an Acquisition Proposal constitutes a Superior Proposal, or (2) the delivery by the Company to Parent of any notice contemplated by Section 5.6(d) will in and of itself constitute a Company Adverse Recommendation Change; or
(ii) cause or permit the Company or any of its Subsidiaries to enter into any Acquisition Agreement relating to any Acquisition Proposal.
(d) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Required Vote, if the Company has received a bona fide written Acquisition Proposal from any Person that is not withdrawn and that the Company Board of Directors (or a committee thereof) concludes in good faith judgment constitutes a Superior Proposal, then (x) the Company Board of Directors (or a committee thereof) may effect a Company Adverse Recommendation Change with respect to such Superior Proposal, or (y) the Company Board of Directors (or a committee thereof) may authorize the Company to terminate this Agreement to enter into an alternative Acquisition Agreement with respect to such Superior Proposal, if and only if:
(i) the Company Board of Directors (or a committee thereof) determines in good faith, after consultation with its independent financial advisor and outside legal counsel, that failure to do so would be inconsistent with its fiduciary duties under applicable Law;
(ii) the Company shall have complied in all material respects with its obligations under this Section 5.6 with respect to such Acquisition Proposal;
(iii) the Company shall have provided prior written notice to Parent at least three (3) Business Days in advance (the “Notice Period”), to the effect that the Company Board of Directors has received a bona fide written Acquisition Proposal that is not withdrawn and that the Company Board of Directors (or a committee thereof) concludes in good faith constitutes a Superior Proposal and, absent any revision to the terms and conditions of this Agreement, the Company Board of Directors (or a committee thereof) has resolved to effect a Company Adverse Recommendation Change and/or to terminate this Agreement pursuant to Section 7.1(d), which notice shall specify the basis for such Company Adverse Recommendation Change and/or termination, including the identity of the party making the Superior Proposal and the material terms thereof (including copies of all material documents relating to the Superior Proposal, including, for the avoidance of doubt, a copy of the proposed merger agreement); and
(A) prior to effecting such Company Adverse Recommendation Change or termination, the Company shall, and shall cause their financial and legal advisors to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such Acquisition Proposal would cease to constitute a Superior Proposal; provided that in the event of any material revisions to the Acquisition Proposal that the Company Board of Directors has determined to be a Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.6 (including this Section 5.6(d)) with respect to such new written notice; provided, further, that the Notice Period with respect to such new written notice shall expire upon the end of the second (2nd) Business Day after the delivery of such new written notice; and
(B) any such termination shall be in accordance with Section 7.1(e), including the payment of the Company Termination Fee in accordance with Section 7.2(b).
(e) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Required Vote, the Company Board of Directors (or a committee thereof) may, in response to a material development or change in material circumstances not relating to any Acquisition Proposal, which development or change first occurred or arose after the date hereof and the existence and material consequences of which development or change were not known by the Company Board of Directors at or prior to the date hereof (such material development or change in circumstances, an “Intervening Event”), make a Company Adverse Recommendation Change if the Company Board of Directors (or a committee thereof) determines in good faith, after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged advisor and outside legal counsel), that, in light of such Superior ProposalIntervening Event, the furnishing failure of the Company Board of Directors to effect such information or entering into discussions is required to comply a Company Adverse Recommendation Change would be inconsistent with its fiduciary obligations to the Company and its stockholders duties under applicable Law, ; provided that the Company Board of Directors shall not be entitled to exercise its right to make a Company Adverse Recommendation Change pursuant to this Section 5.6(e) unless the Company has (iiii) provided to Parent at least three (3) Business Days prior written notice (unless the Intervening Event arises fewer than four (3) Business Days prior to CIG and the NBCU Entities of its intent Stockholders Meeting, in which case such notice shall be given as promptly as practicable prior to furnish information or enter into discussions with the Stockholders Meeting), which notice shall set forth in reasonable detail the basis for such Person Company Adverse Recommendation Change, and (ivii) obtained from during such Person an executed confidentiality agreement three (it being understood 3) Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to make such adjustments in the terms and conditions of this Agreement in such a manner that obviates the need for a Company Adverse Recommendation Change as a result of 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 the Transaction Agreements to which it is a party)Intervening Event.
(cf) Except as otherwise provided Nothing contained in this Section 5.6 shall be deemed to prohibit the Company or the Company Board of Directors (or a committee thereof) from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to an Acquisition Proposal or this Agreement, neither including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board Exchange Act (or any similar communication to Company Common Stockholders), provided that the Company shall not effect or disclose pursuant to such committee rules or otherwise a position that constitutes a Company Adverse Recommendation Change unless otherwise specifically permitted by this Section 5.6, (ii) making any “stop-look-and-listen” communication or similar communication of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(dtype contemplated by Rule 14d-9(f) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act, or (iii) informing any Person of the existence of the provisions contained in this Section 5.6.
(g) The Company agrees that it will promptly (and, in any event, within twenty-four (24) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by, or any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, the Company or any of its Representatives from or by, respectively, any Third Party indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, and a summary of the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis or upon Parent’s reasonable request, of the status and terms of any such proposals or offers (including any amendments thereto) and any material change in the status of any such discussions or negotiations.
(h) The Company agrees that in the event any of its Representatives takes any action that, if taken by the Company, would constitute a material breach of this Section 5.6, then the Company shall be deemed to be in breach of this Section 5.6.
Appears in 2 contracts
Samples: Merger Agreement (Thoma Bravo Fund Xii, L.P.), Merger Agreement (Imprivata Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any that, from and after the date hereof until the earlier of the directorsEffective Time or the termination of this Agreement in accordance with Article VIII, officers or employees of it or any Subsidiary willshall not, and that it will shall cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Representatives not to, directly or indirectly, (i) solicitinitiate, initiate solicit or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary (any such proposal or offer (includingbeing hereinafter referred to as a "Company Acquisition Proposal"). The Company further agrees that it shall not, without limitationand that it shall cause its Representatives not to, directly or indirectly, have any proposal discussion with or offer provide any confidential information or data relating to its stockholders) that constitutesthe Company or any Company Subsidiary to any Person relating to a Company Acquisition Proposal or engage in any negotiations concerning a Company Acquisition Proposal, or may reasonably be expected otherwise facilitate any effort or attempt to lead make or implement a Company Acquisition Proposal or accept a Company Acquisition Proposal; provided, however, that nothing contained in this Section 6.04(a) shall prevent the Company or the Special Committee from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Competing TransactionPerson in response to an unsolicited written Company Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited written Company Acquisition Proposal to the holders of Company Common Stock if, in any such case as is referred to in clause (ii) enter or (iii), (A) the Special Committee determines in good faith after consultation with outside legal counsel to the Special Committee that such action could reasonably be deemed to be necessary for it to act in a manner consistent with its fiduciary duties under applicable Law, (B) prior to providing any information or data regarding the Company to any Person or any of such Person's Representatives in connection with a Company Acquisition Proposal by such Person, the Company receives from such Person an executed confidentiality agreement on terms at least as restrictive on such Person as those contained in the Confidentiality Agreement, (C) prior to providing any information or data to any Person or any of such Person's Representatives or entering into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiariessuch Person's Representatives in connection with a Company Acquisition Proposal by such Person, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as notifies Parent promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making receipt of such Company Acquisition Proposal indicating, in connection with such notice, the name of such Person and attaching a copy of the proposal or offer or inquiry or contact providing a complete written summary thereof, and (including material amendments or proposed material amendmentsD) the Company has not breached its obligations under the first sentence of this Section 6.04(a). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by agrees that it or any Subsidiary) to, will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transactionany Company Acquisition Proposal. The Company agrees that it shall not release keep Parent informed, on a current basis, of the status and terms of any Person from, such proposals or waive any provision of, any confidentiality or standstill agreement to which it is a party offers and the status of any such discussions or negotiations. The Company also agrees that it will take the necessary steps to promptly request inform each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf Representative of the Company or any Subsidiaryof the obligations undertaken in this Section 6.04(a).
(b) Notwithstanding anything Parent agrees that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, it shall not, and that it shall cause its Representatives not to, directly or indirectly, initiate, solicit or encourage any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the contrary assets or 20% or more of the equity securities of, Parent or any Parent Subsidiary that, in any such case, could reasonably be expected to preclude the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Parent Acquisition Proposal"). Parent further agrees that it shall not, and that it shall cause its Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to Parent or any Parent Subsidiary to any Person relating to a Parent Acquisition Proposal or engage in any negotiations concerning a Parent Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement a Parent Acquisition Proposal or accept a Parent Acquisition Proposal; provided, however, that nothing contained in this Section 10.05, prior to 6.04(b) shall prevent Parent or the Parent Board from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Offer Closing Act with regard to a Parent Acquisition Proposal; (ii) engaging in any discussions or the Exchange Offer Expirationnegotiations with, as applicable, the Board may furnish or providing any information to, and enter into discussions with, a any Person who has made in response to an unsolicited, written, bona fide proposal unsolicited written Parent Acquisition Proposal by any such Person; or offer regarding a Competing Transaction, and (iii) recommending such an unsolicited written Parent Acquisition Proposal to the Board has (i) determinedholders of Parent Common Stock if, in its any such case as is referred to in clause (ii) or (iii), (A) the Parent Board concludes in good faith judgment (after consultation with its financial advisoradvisors) that such Parent Acquisition Proposal would, if consummated, result in a transaction more favorable to holders of Parent Common Stock than the transaction contemplated by this Agreement (any such more favorable Parent Acquisition Proposal being referred to in this Agreement as a "Parent Superior Proposal"), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (iiB) determined, the Parent Board determines in its good faith judgment after consultation with outside legal counsel (who may be the Company’s Parent's regularly engaged outside legal counsel), that, ) that such action could reasonably be deemed to be necessary for it to act in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply a manner consistent with its fiduciary obligations to the Company and its stockholders duties under applicable Law, (iiiC) provided written notice prior to CIG and the NBCU Entities of its intent to furnish providing any information or enter into discussions data regarding Parent or any Parent Subsidiary to any Person or any of such Person's Representatives in connection with a Parent Superior Proposal by such Person and (iv) obtained Person, Parent receives from such Person an executed confidentiality agreement on terms at least as restrictive on such Person as those contained in the Confidentiality Agreement, (it being understood that D) prior to providing any information or data to any Person or any of such confidentiality agreement and Person's Representatives or entering into discussions or negotiations with any related agreements shall not include Person or any provision calling for any exclusive right to negotiate of such Person's Representatives in connection with a Parent Superior Proposal by such Person, Parent notifies the Company promptly of the receipt of such Parent Superior Proposal indicating, in connection with such party notice, the name of such Person and attaching a copy of the proposal or having the effect of prohibiting the Company from satisfying offer or providing a complete written summary thereof, and (E) Parent has not breached its obligations under the Transaction Agreements first sentence of this Section 6.04(b). Parent agrees that it will immediately cease and cause to which be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Parent Acquisition Proposal. Parent agrees that it is shall keep the Company informed, on a partycurrent basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations. Parent agrees that it will take the necessary steps to promptly inform each Representative of Parent of the obligations undertaken in this Section 6.04(b).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Medical Manager Corp/New/), Merger Agreement (Careinsite Inc)
No Solicitation of Transactions. (a) The Company agrees that neither shall, and shall cause its Affiliates, Representatives and any other agents to immediately cease any discussions, negotiations or communications with any party or parties with respect to any Competing Transaction.
(b) The Company shall not, nor shall it nor authorize or permit any Subsidiary nor any Affiliate or Representative of the directors, officers Company or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not Subsidiaries to, directly or indirectly, (i) solicit, initiate initiate, intentionally encourage, participate in or encourage otherwise facilitate, directly or indirectly, any inquiries relating to, or the submission of, any Competing Transaction or (including by way of furnishing nonpublic information)ii) directly or indirectly solicit, initiate, intentionally encourage, participate in or otherwise facilitate any discussions or negotiations regarding, or furnish to any Third Party any information or data with respect to or provide access to the properties, offices, books, records, officers, directors or employees of, or take any other action to facilitateknowingly, any inquiries directly or indirectly, solicit, initiate, intentionally encourage, participate in or otherwise facilitate the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction. Without limiting the generality of the foregoing, (ii) enter into or maintain or continue discussions or negotiations with it is understood that any Person in furtherance violation of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors restrictions set forth in this Section 5.6 by any Representative or employees Affiliate of the Company or any of its SubsidiariesSubsidiaries shall be deemed to be a breach of this Section 5.6 by the Company. Notwithstanding the foregoing, if, prior to obtaining the Company Required Vote, (i) the Company has complied with this Section 5.6, and (ii) the Company Board of Directors reasonably determines in good faith that a Competing Transaction constitutes or any investment bankerwould reasonably be expected to lead to a Superior Competing Transaction, financial advisorthen, attorneyto the extent required by the fiduciary obligations of the Company Board of Directors, accountant or other representative retained as determined in good faith by a majority thereof after consultation with the Company's outside counsel, the Company may, subject to the Company's providing prior written notice to Parent of its decision to take such action and compliance by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereofwith Section 5.6(d), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore furnish information with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to, and participate in discussions and negotiations directly or through its Representatives with, such Third Party, subject to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations not materially less favorable to the Company and its stockholders under applicable Lawthan the Confidentiality Agreement, (iii) provided, that all such information not theretofor provided written notice to CIG and the NBCU Entities of its intent Parent is provided to furnish information Parent prior to or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which as soon as reasonable practicable after it is a party)provided to such Third Party.
(c) Except as otherwise provided in this Agreement, neither Neither the Company Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose or resolve to withdraw or modify, in a manner adverse to CIG and the NBCU EntitiesParent or Merger Sub, the approval or and recommendation by the Company Board or any such committee of Directors of the Merger, this Agreement and the "agreement of merger" (as such term is used in Section 251 of the DGCL) contained herein, the Transaction Agreements Documents, the transactions contemplated hereby and thereby and the actions taken in connection herewith and therewith, (ii) approve or recommend, or propose or resolve to approve or recommend, any Competing Transaction, (iii) approve or recommend, or propose or resolve to approve or recommend, or execute or enter into, any Acquisition Agreement, (iv) approve or recommend, or propose or resolve to approve or recommend, or execute or enter into, any agreement (written or oral) requiring it to abandon, terminate or fail to consummate the Merger, this Agreement, any Transaction Document or the transactions contemplated hereby or thereby, (v) take any action necessary to render the provisions of any Antitakeover Law inapplicable to any Competing Transaction, or (vi) propose or agree to do any of the foregoing constituting or related to, or that is intended to or would reasonably be expected to lead to, any Competing Transaction. Notwithstanding the foregoing, prior to obtaining the Company Required Vote, in response to a Superior Competing Transaction that was not solicited, initiated, intentionally encouraged, participated in or otherwise facilitated by the Company in breach of Section 5.6(b), the Company Board of Directors may, if it determines in good faith (after consultation with the Company's outside legal counsel) that the failure to do so would result in a breach of the fiduciary duties of the Company Board of Directors to the Company Stockholders under applicable Law or Order, (1) modify, or propose or resolve to modify, in a manner adverse to Parent or Merger Sub, the approvals and recommendations of the Company Board of Directors of the Merger, or the transactions contemplated hereby or by the Transaction Documents, or (2) terminate the Agreement in accordance with Section 7.1(d), but in each case only (y) at a time that is after the fifth (5th) Business Day following Parent's receipt of written notice advising Parent that the Company Board of Directors is prepared to take such action (during which period the Company shall negotiate in good faith with Parent concerning any New Parent Proposal), specifying therein all of the terms and conditions of such Superior Competing Transaction, and identifying the Person or group making such Superior Competing Transaction and (z) if, after the end of such five (5) Business Day period, the Company Board of Directors determines in good faith (after consultation with the Company's outside legal counsel and financial advisor) that such proposed transaction continues to be a Superior Competing Transaction, after taking into account any New Parent Proposal. The Company shall not during the term of this Agreement release any Third Party from, or agree to amend or waive any provision of any confidentiality agreement, and the Company shall take all reasonable best efforts to enforce, to the fullest extent permitted by applicable Laws, each confidentiality agreement entered into pursuant to this Section 5.6 and any other confidentiality agreement to which the Company is or becomes a party party.
(d) In addition to the obligations set forth in Sections 5.6(a), (b) and (c), the Company shall advise Parent orally and, if requested by Parent, in writing of (i) any Competing Transaction or any offer, proposal or inquiry with respect to or which could reasonably be expected to lead to any Competing Transaction received by any officer or director of the Company or, to the Knowledge of the Company, other Representative of the Company, (ii) the terms and conditions of such Competing Transaction (including a copy of any written proposal) and (iii) the identity of the Person or group making the offer, proposal or inquiry for any such Competing Transaction immediately (but in any event within thirty-six (36) hours) following receipt by the Company or any officer or director of the Company or, to the Knowledge of the Company, any other Representative of the Company of such Competing Transaction offer, proposal or inquiry. If the Company or its Subsidiaries or any of their respective Affiliates or Representatives participates in substantive discussions or any negotiations with, or provides material information in connection with any such Competing Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into shall keep Parent advised on a current basis of any letter of intent, agreement or obligation developments with respect to, any thereto. The Company agrees to notify Parent immediately if the Company Board of Directors determines that a Competing Transaction is not a Superior Competing Transaction.
(de) The parties acknowledge Nothing contained in this Section 5.6 or any other provision hereof shall prohibit the Company or the Company Board of Directors from taking and agree that nothing contained herein shall affect or in any way interfere with disclosing to the Company’s Obligation Company Stockholders pursuant to comply with Rule Rules 14d-9 and 14e-2 promulgated under the Exchange ActAct a position with respect to a tender or exchange offer by a Third Party that is consistent with its obligations hereunder; provided, however, that neither the Company nor the Company Board of Directors may either, except as provided by Section 5.6(c), (i) modify, or propose publicly to modify, in a manner adverse to Parent and Merger Sub, the approvals or recommendations of the Company Board of Directors of the Merger or this Agreement and the "agreement of merger" (as such term is used in Section 251 of the DGCL) contained herein, or (ii) approve or recommend a Competing Transaction, or propose publicly to approve or recommend a Competing Transaction.
(f) Nothing in this Section 5.6 shall permit the Company to terminate this Agreement (except as expressly provided in Article VII).
Appears in 2 contracts
Samples: Merger Agreement (Smithkline Beecham Corp), Merger Agreement (Corixa Corp)
No Solicitation of Transactions. (a) The Until this Agreement shall have been terminated pursuant to Section 8.01, neither the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not toshall, directly or indirectly, (i) solicitthrough any officer, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company director or any of its Subsidiariesagent, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any Subsidiary or otherwise, solicit, initiate or encourage the submission of any proposal or offer from any person relating to any acquisition or purchase of all or (other than in the ordinary course of business) any substantial portion of the assets of, or any equity interest in, the Company (including, without limitation, any take-over bid or tender offer or exchange offer, merger, consolidation or similar transaction involving the Company or any of its subsidiaries (other than the transactions contemplated by this Agreement) (any of such transactions being an "Acquisition Transaction") or any business combination with the Company or, except to the extent required by fiduciary obligations under applicable law as advised by independent counsel, participate in any negotiations regarding, or furnish to any other person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person to do or seek any of the foregoing; provided, however, that nothing contained in this Section 6.05 shall prohibit the Board from furnishing information to, or entering into discussions or negotiations with, any person in connection with an unsolicited (from the date of this Agreement) proposal in writing by such person to acquire the Company pursuant to a merger, consolidation, share exchange, business combination or other similar transaction or to acquire all or substantially all of the assets of the Company or any of its Subsidiaries, if, and only to take the extent that, (i) the Board, after consultation with independent counsel (which may include its regularly engaged independent counsel), determines in good faith that such action is required for the Board to act in a manner that is consistent with its fiduciary duties to stockholders imposed by Delaware Law (such determination having been made by the full Board and not having been delegated to any committee thereof) and (ii) prior to furnishing such actioninformation to, or entering into discussions or negotiations with, such person the Company obtains from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement. The Company immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. The Company shall notify CIG and the NBCU Entities as Parent promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any such proposal or offer, or any inquiry or contact with any Person person with respect thereto, regarding a Competing Transaction is made, specifying made after the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments)execution hereof. The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause agrees not to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person third party from, or waive any provision of, any confidentiality or or, subject to the fiduciary duties of the Board, standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is or may become a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transactionparty.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (McFarland Energy Inc), Merger Agreement (McFarland Energy Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any shall, and shall cause its Subsidiaries and each of the their respective affiliates, directors, officers or employees of it or any Subsidiary willofficers, employees, agents and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) enter into or maintain or continue discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve or endorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, ) to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person other than the Company, its Affiliates, or their respective representatives (any such other Person, a “Third Party”) that may have been conducted heretofore be ongoing with respect to the possibility or consideration of any Acquisition Proposal. In addition, the Company shall enforce and shall not terminate, amend, modify or waive any standstill provision of any confidentiality agreement or other standstill agreement between the Company and any Third Party entered into prior to the date hereof. From the date of this Agreement through the Effective Time, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate or knowingly encourage (including by way of furnishing non-public information), or take any other action designed to facilitate or encourage the making of any proposal by any Third Party that constitutes an Acquisition Proposal, (ii) participate in any discussions or negotiations with any Third Party regarding, or provide any nonpublic information or data to any Third Party relating to, any Acquisition Proposal, (iii) make or authorize any public statement, recommendation or solicitation in support of, or execute or enter into, or propose to execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, or other similar agreement providing for any Acquisition Proposal or (iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the transactions contemplated by this Agreement.
(b) Notwithstanding the foregoing, until consummation of the Offer in accordance with this Agreement, the Board shall be permitted directly or indirectly, through one or more agents, representatives or other intermediaries, to engage in discussions and negotiations with, or provide nonpublic information or data to, any Person in response to an unsolicited, bona fide written Acquisition Proposal by such Person made after the date of this Agreement that did not result from a Competing Transactionbreach of Section 5.1(a), which the Board concludes in good faith (after consultation with outside counsel and its financial advisor) constitutes or would reasonably be expected to lead to a Superior Proposal, but only if, prior to furnishing such information to or entering into negotiations or discussions with such Person, the Company enters into a confidentiality agreement with such Person having provisions that are no less restrictive to such Person than those applicable to Parent and contained in the Confidentiality Agreement. The Company shall not release notify Parent as promptly as practicable (and in no event later than 24 hours) after receipt of any Person fromAcquisition Proposal, or waive any provision of, any confidentiality or standstill agreement request for nonpublic information relating to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any of its Subsidiaries by any Person that informs the Company or any of its Subsidiaries that it is considering making an Acquisition Proposal, or any inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Person making the Acquisition Proposal, inquiry or request. The Company agrees that it shall keep Parent reasonably informed of the status (but not specific terms) of any such inquiries, proposals, offers, discussions or negotiations on a current basis.
(c) The Board may (i) withdraw, modify or change, in a manner adverse to Parent or Purchaser, the Board’s recommendation to accept the Offer and approve the Merger, (ii) approve or recommend that stockholders approve or accept a Superior Proposal, (iii) terminate this Agreement in accordance with Section 7.1(f) or (iv) take any action that any court of competent jurisdiction orders the Company to take, in each case, prior to the consummation of the Offer in accordance with this Agreement, but only if prior to taking any such action in clause (i) through (iv), above, (A) the Board determines in good faith after consultation with the Company’s financial advisors and outside legal counsel, that an Acquisition Proposal constitutes a Superior Proposal and that failure to take any such action would result in a reasonable likelihood of a breach of the fiduciary duties of the Board under applicable law, (B) the Company shall have provided Parent with at least three (3) Business Days’ prior notice of its intention to take any such action and of the terms of such Superior Proposal (including providing a copy of the final terms of such Superior Proposal), (C) during such three (3) Business Day period, the Board shall have given due consideration to any proposals made by Parent to adjust the Offer and the Transactions; and (D) the Board shall have determined (1) after consultation with its financial advisor, that any such proposal made by or on behalf of Parent is less favorable to the Company stockholders than the Superior Proposal and (2) after consultation with outside legal counsel, it would result in a reasonable likelihood that the Board would breach its fiduciary duties to the Company stockholders under applicable law if it failed to take such action described in clause (i) through (iv) above. Nothing contained in this Section 5.1 shall prohibit the Company or its Subsidiaries from complying with Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement.
(d) For purposes of this Section 5.1, “Acquisition Proposal” means (i) any proposal or offer from any Third Party relating to any direct or indirect acquisition of (A) fifteen percent (15%) or more of the consolidated assets of the Company and its Subsidiaries (either directly or through the acquisition of equity securities of any Subsidiary), (B) fifteen percent (15%) or more of any class of equity securities of the Company; (ii) any tender offer or exchange offer, as defined pursuant to the Exchange Act, that, if anyconsummated, to return would result in any person beneficially owning fifteen percent (15%) or if permitted by more of any class of equity securities of the applicable confidentiality agreementCompany or (iii) any merger, destroyconsolidation, business combination, sale of all or a substantial part of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any Subsidiary whose assets constitute fifteen percent (15%) all confidential information heretofore furnished to such Person or more of the consolidated assets of the Company and its Subsidiaries, in each case other than the Transactions. “Superior Proposal” means a bona fide written Acquisition Proposal not solicited by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, Subsidiary that the 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 Board has (i) determined, determines in its good faith judgment to be superior to the Offer and Merger from a financial point of view to the holders of Company Common Stock (after consultation with its based on the advice of an independent financial advisoradvisor of nationally recognized reputation ), that taking into account all the terms and conditions of such proposal or offer constitutes or proposal, and (B) that, in the good faith judgment of the Board, is reasonably likely to constitute a Superior Proposalbe consummated, (ii) determinedtaking into account all legal, in its good faith judgment after consultation with outside legal counsel (who may be financial, regulatory, and other aspects of the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG proposal and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 making the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which it is a party)proposal.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Oce N V), Merger Agreement (Imagistics International Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the shall not, directly or indirectly, and shall instruct its officers, directors, officers employees, subsidiaries, agents or employees of it advisors or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) it), not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action knowingly to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) or enter into or maintain or continue discussions or negotiations negotiate with any Person person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) or agree to, approve to or endorse any Competing Transaction Transaction, or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its SubsidiariesCompany Subsidiary, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its SubsidiariesCompany Subsidiary, to take any such action; PROVIDED, HOWEVER, that nothing contained in this Section 6.05 shall prohibit the board of directors of the Company from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.05 or (ii) with regard to such an offer, after receiving the advice of outside counsel to the effect that the board of directors of the Company is required to do so in order to discharge properly its fiduciary duties, considering, negotiating and approving and recommending to the shareholders of the Company an unsolicited bona fide written acquisition proposal which (A) was not received in violation of this Section 6.06, (B) if executed or consummated would be a Competing Transaction, (C) is not subject to financing and (D) the board of directors of the Company determines in good faith, after receipt of an opinion of its financial advisor to such effect, would result in a transaction more favorable to the Company's stockholders, than the transaction contemplated by this Agreement (any such acquisition proposal, a "SUPERIOR PROPOSAL"). The Company shall notify CIG and the NBCU Entities as promptly as practicable (Parent promptly, and in any no event within later than one (1) Business Day day after the Company attains knowledge thereof), orally and in writingreceipt, if any proposal or offer, or any inquiry or contact with any Person person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and immediately shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party party. The Company shall use its best efforts to ensure that its officers, directors, employees, subsidiaries, agents and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring advisors or other representatives (whether including, without limitation, any investment banker, attorney or accountant retained by merger, acquisition of stock or assets or otherwiseit) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf are aware of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary restrictions described in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)6.05.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Sun Healthcare Group Inc), Agreement and Plan of Merger and Reorganization (Sun Healthcare Group Inc)
No Solicitation of Transactions. (a) The Until the earlier of the Effective Time and termination of this Agreement pursuant to Article VIII, except pursuant to Section 6.04(b), the Company agrees that neither it nor any Subsidiary nor any of the directors, officers or employees of it or any Subsidiary its Subsidiaries will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives Representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any SubsidiaryGroup Company) not to, in each case, directly or indirectly, (i) solicit, initiate or initiate, knowingly encourage (including by way of furnishing nonpublic informationinformation concerning any Group Company), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including, without limitation, including any proposal or offer to its stockholdersshareholders) that constitutes, or may would reasonably be expected to lead to, any Competing Transaction, (ii) enter into or into, maintain or continue discussions or negotiations with with, or provide any Person nonpublic information concerning any Group Company to, any Third Party in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve approve, endorse, recommend or endorse consummate any Competing Transaction or enter into any letter of intent or Contract (other Contract than an Acceptable Confidentiality Agreement) or commitment contemplating or otherwise relating to any Competing Transaction (in each case, other than as permitted pursuant to Section 6.04(c)), or (iv) authorize grant any waiver, amendment or permit release under any of the officersstandstill, directors confidentiality or employees of similar agreement or Takeover Statutes (and the Company shall promptly take all reasonable action necessary to terminate or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, cause to take be terminated any such actionwaiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement). The Company shall notify CIG and the NBCU Entities Parent as promptly as practicable (and in any event within one forty-eight (148) Business Day after the Company attains knowledge thereofhours), orally and in writing, if of any proposal or offer, or any inquiry or contact with between the Company or its Representatives and any Person with respect theretoThird Party, regarding a Competing Transaction is madeTransaction, specifying (x) the material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the party making such proposal or offer or inquiry or contact, unless the disclosure of such identity would be prohibited by a confidentiality agreement in effect on the date hereof and (z) whether the Company has any intention to provide confidential information to such person. The Company shall keep Parent informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material amendments terms and conditions thereof). Without limiting the foregoing, the Company shall provide Parent with forty-eight (48) hours prior notice (or proposed material amendments)such lesser prior notice as is provided to the members of the Company Board or members of the Special Committee) of any meeting of the Company Board or Special Committee at which the Company Board or Special Committee, as applicable, is reasonably expected to consider any Competing Transaction. The Company shall, and shall direct or cause its Subsidiaries and the Representatives of the Company and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) Subsidiaries to, immediately cease and cause to be terminated any terminate all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing TransactionTransaction and immediately revoke or withdraw access of any Third Party to any data room containing any nonpublic information concerning any Group Company and request, and use its reasonable efforts to cause, all such Third Parties to promptly return or destroy all such nonpublic information. The Company shall not, and shall cause its Subsidiaries not release any Person fromto, or waive any provision of, enter into any confidentiality or standstill agreement with any Third Party subsequent to the date of this Agreement which it is a party and prohibits the Company also agrees from providing such information to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any SubsidiaryParent.
(b) Notwithstanding anything to the contrary in this Section 10.056.04(a), at any time prior to the Exchange Offer Closing or receipt of the Exchange Offer ExpirationRequisite Company Vote, as applicable, following the Board may furnish information to, and enter into discussions with, a Person who has made receipt of an unsolicited, written, bona fide proposal or offer regarding a Competing TransactionTransaction which was not obtained in violation of this Section 6.04 (other than any immaterial non-compliance that does not adversely affect Parent or Merger Sub), the Company and its Representatives may, with respect to such proposal or offer and acting only under the Board has direction of the Special Committee:
(i) contact the person who has made such proposal or offer solely to (A) refer to the applicable provisions of this Agreement and/or (B) clarify and understand the terms and conditions thereof to the extent the Special Committee shall have determined in good faith that such contact is necessary to determine whether such proposal or offer constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal;
(ii) provide information in response to the request of the person who has made such proposal or offer, if and only if, prior to providing such information, the Company has received from the person so requesting such information an executed Acceptable Confidentiality Agreement, provided that the Company shall concurrently make available to Parent any material information concerning the Company and the Subsidiaries that is provided to any such person and that was not previously made available to Parent or its Representatives; and
(iii) engage or participate in any discussions or negotiations with the person who has made such proposal or offer; provided, that prior to taking any actions described in clause (ii) or (iii) above, the Special Committee has (A) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that such proposal or offer constitutes or could reasonably be expected to result in a Superior Proposal, (B) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that, in light of such Superior Proposal, failure to take such action would be inconsistent with the fiduciary duties of the Company Board under applicable Law, and (C) provided written notice to Parent at least forty-eight (48) hours prior to taking any such action.
(c) Except as set forth in Section 6.04(d), neither the Company Board nor any committee thereof shall (i) (A) change, withhold, withdraw, qualify or modify (or publicly propose to change, withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation, (B) fail to make the Company Recommendation or fail to include the Company Recommendation in the Proxy Statement, (C) adopt, approve or recommend, or publicly propose to adopt, approve or recommend to the shareholders of the Company, a Competing Transaction, (D) if a tender offer or exchange offer that constitutes a Competing Transaction is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company shareholders (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer, provided that a customary “stop, look and listen” communication by the Company Board pursuant to Rule 14d−9(f) of the Exchange Act or a statement that the Company Board has received and is currently evaluating such Competing Transaction shall not be prohibited or deemed to be a Change in the Company Recommendation) within ten (10) Business Days after commencement thereof, (E) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, or (F) publicly reaffirm the Company Recommendation following any Competing Transaction having been publicly made, proposed or communicated (and not publicly withdrawn) within ten (10) Business Days after Parent so requests in writing, provided that Parent may not make such request more than one time unless there shall have been an additional public announcement with respect to such Competing Transaction or another Competing Transaction shall have been publicly made, proposed or communicated (and not publicly withdrawn) (any of the foregoing, a “Change in the Company Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other or similar document or Contract with respect to any Competing Transaction other than an Acceptable Confidentiality Agreement entered into in compliance with Section 6.04(b) (an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement and at any time prior to the receipt of the Requisite Company Vote, if the Company has received a bona fide written proposal or offer with respect to a Competing Transaction which was not withdrawn and which was not obtained in violation of Section 6.04 (other than any immaterial non-compliance that does not adversely affect Parent or Merger Sub) and the Company Board (upon the unanimous recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment (after consultation with its financial advisor and outside legal counsel), that such proposal or offer constitutes a Superior Proposal and failure to make a Change in the Company Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law, the Company Board may (and at the direction of the Special Committee, shall), (i) effect a Change in the Company Recommendation with respect to such Superior Proposal, and/or (ii) with respect to such Superior Proposal, authorize the Company to terminate this Agreement in accordance with Section 8.03(c) and enter into an Alternative Acquisition Agreement, but only (A) if the Company shall have complied with the requirements of Section 6.04(a) and Section 6.04(b) with respect to such proposal or offer (other than any immaterial non-compliance that does not adversely affect Parent or Merger Sub); (B) after (1) providing at least five (5) Business Days’ (the “Superior Proposal Notice Period”) 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 of such Superior Proposal (and providing any proposed agreements related thereto), identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c), it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company Recommendation, (2) negotiating with and causing its financial and legal advisors to negotiate with Parent, Merger Sub and their respective Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and the Financing, so that such Third Party proposal or offer would cease to constitute a Superior Proposal; (C) permitting Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement, the Financing and any adjustments with respect thereto (to the extent Parent desires to make such presentation and such presentation does not require any delay to any scheduled meeting of the Company’s shareholders or of the Company Board or the Special Committee); provided that any material modifications to such Third Party proposal or offer that the Company Board or the Special Committee has determined to be a Superior Proposal shall be deemed a new Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.04(d), provided, further, that with respect to the new written notice to Parent, the Superior Proposal Notice Period shall be deemed to be a three (3) Business Day period rather than the five (5) Business Day period first described above; and (D) following the end of such three (3) Business Day period or five (5) Business Day period (as applicable), the Company Board (upon the unanimous recommendation of the Special Committee) or the Special Committee shall have determined, in its good faith judgment (after consultation with its financial advisoradvisor and outside legal counsel), that such taking into account any changes to this Agreement and the Financing proposed by Parent and Merger Sub in response to the Notice of Superior Proposal or otherwise, that the proposal or offer constitutes or is reasonably likely with respect to the Competing Transaction giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. None of the Company, the Company Board or any committee of the Company Board shall enter into any Contract with any Third Party to limit or not to give prior notice to Parent of its intention to effect a Change in the Company Recommendation.
(e) Nothing contained in this Section 6.04 shall be deemed to prohibit the Company, the Company Board or the Special Committee from (i) complying with its disclosure obligations under U.S. federal or state or non-U.S. Law, including (A) disclosure of factual information regarding the business, financial condition or results of operations of the Company or (B) taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided that any such disclosure pursuant to this clause (B) (other than a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or a statement that the Company Board or the Special Committee, as applicable, has received and is currently evaluating such Competing Transaction) that does not include an express rejection of any applicable Competing Transaction or an express reaffirmation of its recommendation in favor of the Transactions shall be deemed to be a Change in the Company Recommendation, or (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement and making 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 the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee “stop-look-and-listen” communication of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(dtype contemplated by Rule 14d-9(f) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
(f) Prior to the termination of this Agreement pursuant to Article VIII, the Company shall not submit to the vote of its shareholders any Competing Transaction or enter into any Alternative Acquisition Agreement or propose to do so.
(g) The Company shall promptly inform its officers and directors of the obligations applicable to such officers and directors pursuant to this Section 6.04.
Appears in 2 contracts
Samples: Merger Agreement (Yao Jinbo), Merger Agreement (58.com Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any Subject to Section 5.03(b), Section 5.03(d) and Section 5.03(e), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of the directorstermination of this Agreement in accordance with Section 7.01 or the Effective Time, officers or employees of it or any Subsidiary willthe Company and the Company Subsidiaries shall not, and that it will cause its the Company shall direct the Company Representatives not to, and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney shall not authorize or accountant retained by it or any Subsidiary) not knowingly permit the Company Representatives to, directly or indirectly, :
(i) solicitinitiate, initiate solicit or knowingly encourage or knowingly induce (including by way of furnishing nonpublic information), or take any other action providing information relating to facilitate, any inquiries the Company or the making Company Subsidiaries or affording access to the business or properties of the Company) the making, submission or announcement of any proposal Acquisition Proposal or offer (includingAcquisition Inquiry or otherwise knowingly cooperate with or knowingly assist or participate in or knowingly facilitate the making, without limitation, submission or announcement of any proposal Acquisition Proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, Acquisition Inquiry,
(ii) enter into participate or maintain or continue engage in discussions or negotiations with any Person with respect to an Acquisition Proposal or Acquisition Inquiry (for avoidance of doubt, it being understood that the foregoing shall not prohibit the Company or the Company Representatives from making such Person aware of the restrictions of this Section 5.03 in furtherance response to the receipt of such inquiries an Acquisition Proposal or to obtain a proposal or offer for a Competing TransactionAcquisition Inquiry), (iii) agree toapprove, approve adopt, endorse, or endorse recommend to the Company’s stockholders, or publicly propose to approve, adopt, endorse, declare advisable or recommend to the Company’s stockholders, any Competing Transaction Acquisition Proposal, (iv) withdraw, change, amend, modify or qualify or publicly propose to withdraw, change, amend, modify or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation (any action or failure to act taken by the Company Board set forth in the foregoing clause (iii) or this clause (iv), a “Change of Board Recommendation”),
(v) enter into any merger agreement, letter of intent, term sheet, agreement in principle, memorandum of understanding, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement, joint venture agreement, partnership agreement or other similar Contract constituting or relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or enter into any letter of intent Contract or other Contract relating agreement requiring the Company to any Competing Transaction abandon, terminate or (iv) authorize fail to consummate the Transactions, or permit resolve or agree to take any of the officersforegoing actions, directors or
(vi) terminate, waive, amend or employees of modify any provision of, or grant permission under, any standstill, confidentiality agreement or similar Contract to which the Company or any of its SubsidiariesCompany Subsidiary is a party (provided, or any investment banker, financial advisor, attorney, accountant or other representative retained by that the Company or shall be permitted to grant waivers of, and not enforce, any of its Subsidiaries, standstill agreement solely to take any the extent such actionprovision would otherwise prohibit the counterparty thereto from making an unsolicited Acquisition Proposal to the Company Board in compliance with this Section 5.03). The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1A) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions solicitation, knowing encouragement, discussion or negotiations negotiation with any Person that may have been Persons, conducted heretofore prior to the execution of this Agreement, by the Company, the Company Subsidiaries or any of the Company Representatives with respect to a Competing Transaction. The any Acquisition Proposal or Acquisition Inquiry and (B) promptly after the execution and delivery of this Agreement, the Company shall not release any Person from, demand the return or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration destruction of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person provided by or on behalf of the Company or any SubsidiaryCompany Subsidiary to such Person prior to the date hereof and use its reasonable best efforts to enforce the terms of any confidentiality agreement with the recipient of such information (except as provided in this Section 5.03 with respect to any standstill provision thereof).
(b) Notwithstanding anything to the contrary contained in this Section 10.05Agreement, at any time following the date of this Agreement and prior to the Exchange Offer Closing or receipt of the Exchange Offer ExpirationCompany Stockholder Approval, as applicable, the Board may furnish information to, and enter into discussions with, in response to a Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and written Acquisition Proposal that the Company Board has (i) determined, determines in its good faith judgment (after consultation with its financial advisor), that such proposal or offer After Consultation constitutes or is could reasonably likely be expected to constitute lead to or result in a Superior Proposal, the Company and the Company Representatives may (i) engage or participate in discussions or negotiations with, and only with, the Person (or such Person’s representatives) that has made such Acquisition Proposal, and (ii) determined, in its good faith judgment after consultation with outside legal counsel furnish to the Person (who may be or such Person’s representatives) that has made the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such Acquisition Proposal information or entering into discussions is required to comply with its fiduciary obligations relating to the Company and its stockholders under applicable Lawthe Company Subsidiaries and/or afford access to the business, properties, assets, books, records or the personnel of the Company and the Company Subsidiaries, in each case pursuant to an Acceptable Confidentiality Agreement; provided that (A) the Company did not receive such Acquisition Proposal other than in connection with or as a result of breaching or violating the terms of this Section 5.03, (iiiB) provided prior to engaging or participating in any such discussions or negotiations with or furnishing any information to, such Person, the Company gives Parent written notice of the identity of such Person and its representatives and all of the material terms and conditions of such Acquisition Proposal and of the Company’s intention to CIG and the NBCU Entities of its intent to engage or participate in discussions or negotiations with, or furnish information or enter into discussions with to such Person and (ivC) obtained from contemporaneously with or prior to furnishing any information to such Person an executed 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 Person, the Company from satisfying its obligations under furnishes such information to Parent (to the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation extent such information has not been previously furnished by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing TransactionParent).
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Concur Technologies Inc), Merger Agreement (Concur Technologies Inc)
No Solicitation of Transactions. (a) The Each of Pubco and the Company agrees that agree that, from the date of this Agreement until the earlier of (x) the Closing Date or (y) the date on which this Agreement is terminated (the “Pre-Closing Period”), neither it nor any Subsidiary of its Subsidiaries shall, nor any of the directors, officers or employees of shall it or any Subsidiary will, and that it will cause of its and Subsidiaries authorize any of its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) not Representatives to, directly or indirectly, : (i) solicit, initiate or encourage (including by way knowingly encourage, induce or facilitate the communication, making, submission or announcement of furnishing nonpublic information), any Acquisition Proposal or Acquisition Inquiry or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may could reasonably be expected to lead to, any Competing Transaction, to an Acquisition Proposal or Acquisition Inquiry; (ii) enter into furnish any non-public information regarding such party to any Person in connection with or maintain in response to an Acquisition Proposal or continue Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person in furtherance of such inquiries with respect to any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal (subject to obtain a proposal or offer for a Competing Transaction, Section 7.01(e)); (iiiv) agree to, approve or endorse any Competing Transaction execute or enter into any letter of intent or other any Contract contemplating or otherwise relating to any Competing Transaction Acquisition Transaction; or (ivvi) authorize or permit publicly propose to do any of the officersforegoing; provided, directors or employees of the Company or any of its Subsidiarieshowever, or any investment bankerthat, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any discussions or negotiations with any Person that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of the Company or any Subsidiary.
(b) Notwithstanding notwithstanding anything to the contrary contained in this Section 10.057.02(a) (but subject to compliance with this Section 7.02(a)) or any other provision of this Agreement, prior to the Exchange Offer Closing or Pubco Stockholder Approval at the Exchange Offer ExpirationSpecial Meeting, as applicable, the Board Pubco may furnish non-public information to, and enter into or engage in discussions or negotiations with, a Person who has made an unsolicited, written, bona fide proposal execute or offer regarding a Competing enter into any letter of intent or any Contract contemplating or otherwise relating to any Acquisition Transaction, and publicly propose to do any of the foregoing with any Person in response to a bona fide, unsolicited written Acquisition Proposal or Acquisition Inquiry by such Person which the Pubco Board has (i) determineddetermines in good faith, in its good faith judgment (after consultation with its outside financial advisor)advisors and outside legal counsel, that such proposal or offer constitutes constitutes, or is reasonably likely to constitute result in, a Superior ProposalOffer if: (A) neither Pubco nor any of its Representative shall have breached this Section 7.02(a) in any material respect; (B) the Pubco Board determines in good faith, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged its outside legal counsel), that, in light of that the failure to take such Superior Proposal, the furnishing of such information or entering into discussions is required to comply action would be inconsistent with its fiduciary obligations to the Company and its stockholders duties under applicable Law, ; (iiiC) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained Pubco receives from such Person an executed confidentiality agreement containing provisions (it being understood that including nondisclosure provisions, use restrictions, non-solicitation provisions and no hire provisions) at least as favorable to Pubco as those contained in the Confidentiality Agreement; and (D) substantially contemporaneously with furnishing any such confidentiality agreement nonpublic information to such Person, Pubco furnishes such nonpublic information to the Company (to the extent such information has not been previously furnished by Pubco to the Company). Without limiting the generality of the foregoing, each of the Company and Pubco acknowledges and agrees that, in the event any Representative of such party (whether or not such Representative is purporting to act on behalf of such party) takes any action that, if taken by such party, would constitute a breach of this Section 7.02(a) by such party, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 7.02(a) by such party for purposes of this Agreement.
(b) If any party receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then such party shall promptly (and in no event later than twenty-four hours after such party becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise the other party orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including, but not limited to, the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof) and shall provide a copy of any written Acquisition Proposal submitted by such Person and any related agreements financing commitments. The Company shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting also provide Pubco confirmation in writing that the Company has advised, in writing, the Person making such Acquisition Proposal or Acquisition Inquiry to the Company (or the Company’s Representative) that the Company and its Representatives are contractually prohibited from satisfying its obligations under furnishing any non-public information regarding the Transaction Agreements Company to which it is a party)any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry and from engaging in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry.
(c) Except as otherwise provided in this Agreement, neither Pubco shall keep the Board nor any committee thereof shall withdraw or modify, or propose Company reasonably informed with respect to withdraw or modify, in a manner adverse to CIG the status and the NBCU Entities, the approval or recommendation by the Board or terms of any such committee Acquisition Proposal or Acquisition Inquiry and shall promptly (and in no event later than twenty-four hours after Pubco’s receipt thereof) inform the Company of any material modification thereto. In addition to the foregoing, Pubco shall provide the Company with at least twenty-four hours written notice of (i) a meeting of the Transaction Agreements to Pubco Board at which the Company Pubco Board is reasonably expected to consider an Acquisition Proposal or Acquisition Inquiry it has received and (ii) the entry by Pubco into a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company definitive transaction agreement relating to enter into any letter of intent, agreement or obligation with respect to, any Competing Acquisition Transaction.
(d) The parties acknowledge Each party shall immediately cease and agree terminate, and cause its Representative to terminate, any existing discussions, negotiations and communications with any Person that nothing contained herein shall affect relate to any Acquisition Proposal or in Acquisition Inquiry as of the date of this Agreement and request the destruction or return of any way interfere with the Company’s Obligation nonpublic information provided to comply with Rule 14d-9 under the Exchange Actsuch Person.
Appears in 2 contracts
Samples: Merger Agreement (Greenidge Generation Holdings Inc.), Merger Agreement (Support.com, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Subsidiary nor any of the shall not, directly or indirectly, and shall instruct its officers, directors, officers employees, subsidiaries, agents or employees of it advisors or any Subsidiary will, and that it will cause its and its Subsidiaries’ agents, advisors and other representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any Subsidiary) it), not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action knowingly to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, including any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, (ii) or enter into or maintain or continue discussions or negotiations negotiate with any Person person in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) or agree to, approve to or endorse any Competing Transaction Transaction, or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its SubsidiariesCompany Subsidiary, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its SubsidiariesCompany Subsidiary, to take any such action; provided, however, that (i) nothing contained in this Section 6.05 shall prohibit the board of directors of the Company from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.05, (ii) with regard to such an offer, after receiving the advice of outside counsel, the board of directors of the Company determines in good faith that it is highly probable that failing to do so would violate its fiduciary duties, nothing contained in this Section 6.05 shall prohibit the board of directors of the Company from considering and negotiating (including furnishing nonpublic information) an unsolicited bona fide written acquisition proposal which (A) was not received in violation of this Section 6.05, (B) if executed or consummated would be a Competing Transaction and (C) is not subject to financing or financing is, in the good faith judgment of the board of directors of the Company after consultation with its financial advisors, highly likely of being obtained by such third party, or (iii) if after receiving the advice of outside counsel, the board of directors of the Company determines in good faith that it is highly probable that failing to do so would violate its fiduciary duties, nothing contained in this Section 6.05 shall prohibit the board of directors of the Company from approving or recommending to the stockholders of the Company an unsolicited bona fide written acquisition proposal which (A) was not received in violation of this Section 6.05, (B) if executed or consummated would be a Competing Transaction, (C) is not subject to financing or financing is, in the good faith judgment of the board of directors of the Company after consultation with its financial advisors, highly likely of being obtained by such third party and (D) the board of directors of the Company determines in good faith, after advice of its financial advisor to such effect, is more favorable to the Company's stockholders than the transaction contemplated by this Agreement (any such acquisition proposal, a "SUPERIOR PROPOSAL"). The Company shall notify CIG and the NBCU Entities as promptly as practicable (Parent promptly, and in any no event within later than one (1) Business Day day after the Company attains knowledge thereof), orally and in writingreceipt, if any proposal or offer, or any inquiry or contact with any Person person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and immediately shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary) to, immediately cease and cause to be terminated any all existing discussions or negotiations with any Person that may have been parties conducted heretofore with respect to a Competing Transaction. The Subject to the fiduciary duties of the Board of Directors of the Company, the Company shall not release any Person third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party party. The Company shall use its best efforts to ensure that its officers, directors, employees, subsidiaries, agents and the Company also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring advisors or other representatives (whether including any investment banker, attorney or accountant retained by merger, acquisition of stock or assets or otherwiseit) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf are aware of the Company or any Subsidiary.
(b) Notwithstanding anything to the contrary restrictions described in this Section 10.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the 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 Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed 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 the Transaction Agreements to which it is a party)6.05.
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Telco Systems Inc /De/), Merger Agreement (World Access Inc)
