No Solicitation of Transactions. (a) 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 and the Company Subsidiaries shall not, nor shall they authorize or knowingly permit any of their respective Representatives to, directly or indirectly (i) solicit, initiate, knowingly encourage or knowingly facilitate any Acquisition Proposal or the making thereof, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish any information to, or otherwise cooperate in any way with, any person (other than Parent, Purchaser and their Representatives) with respect to any Acquisition Proposal, or (iii) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or similar obligation of any person other than Parent or its affiliates. The Company immediately shall, and shall cause the Company Subsidiaries and shall instruct each of their respective Representatives immediately to, cease and cause to be terminated any and all discussions or negotiations with any person that may be ongoing with respect to any Acquisition Proposal and request the prompt return or destruction of all confidential information provided to any such party prior to the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the contrary herein, prior to the Acceptance Date, in response to a bona fide written Acquisition Proposal that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) is, or is reasonably likely to result in, a Superior Proposal, and which Acquisition Proposal did not result from or arise in connection with a breach of this Section 7.5(a) and was made after the date hereof, the Company may, subject to compliance with Section 7.5(c), (x) furnish information regarding the Company and the Company Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement (which shall permit the Company to comply with the terms of Section 7.5(c)) containing confidentiality and standstill provisions not less restrictive to such person than the provisions of the Confidentiality Agreement are to Parent; provided that all such information has previously been provided to Parent or is provided to Parent prior to or concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, but only if and to the extent that in connection with the foregoing clauses (x) and (y), the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, and provided, the Company shall not take any of the actions referred to in the foregoing clauses (x) and (y) unless the Company shall have notified Parent in writing at least three (3) business days prior to taking such action that it intends to take such action and the basis hereunder therefor. In addition, notwithstanding the foregoing, prior to the Acceptance Date, the Company may, to the extent the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, not enforce any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party for the sole purpose of allowing the other party to such agreement to submit an Acquisition Proposal, or with respect to another party that has submitted an Acquisition Proposal, solely with respect to such submission, that will constitute, or is reasonably likely to lead to, a Superior Proposal, that did not, in each case, result from a breach by the Company of this Section 7.5.
Appears in 2 contracts
Samples: Merger Agreement (Wind River Systems Inc), Merger Agreement (Intel Corp)
No Solicitation of Transactions. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any Takeover Proposal (as hereinafter defined). The Company, its Subsidiaries, directors, employees, representatives and agents may furnish information and access, in each case only in response to a request for such information or access to any person made after the date hereof which was not initiated, solicited or knowingly encouraged by the Company or any of its affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof (with respect to confidential information, pursuant to appropriate confidentiality agreements), and may participate in discussions and negotiate with such entity or group concerning any Takeover Proposal, only if such entity or group has submitted a bona fide proposal to the Board of Directors of the Company relating to any such transaction and (a) if the Board of Directors of the Company determines in good faith, after receiving advice from its independent financial advisor, that such entity or group has submitted to the Company a Takeover Proposal which is reasonably likely to be a Superior Proposal (as hereinafter defined), and (b) if the Board of Directors of the Company determines, in its good faith judgment, based on the opinion of outside legal counsel to the Company, that failing to take such action would constitute a breach of such Board's fiduciary obligations under applicable law. The Company shall promptly notify Parent if any proposal or offer, or any inquiry or contact with any person with respect thereto, is made and shall, in any such notice to Parent, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal or offer, or any such inquiry or contact. The Company will promptly provide to Parent any non-public information concerning the Company or its Subsidiaries provided to any other person which was not previously provided to Parent. The Company shall 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 other transactions contemplated by this Agreement. Except as set forth in this Section 7.57.2, until the earlier of the Control Date or the termination of this Agreement in accordance with the terms hereof, neither the Company and the Company Subsidiaries shall notnor any of its affiliates, nor shall they authorize or knowingly permit any of its or their respective Representatives toofficers, directors, employees, representatives or agents, shall, directly or indirectly (i) solicit, initiateindirectly, knowingly encourage or knowingly facilitate any Acquisition Proposal or the making thereofsolicit, (ii) enter into, continue or otherwise participate in any or initiate discussions or negotiations regardingwith, or furnish provide any information to, any corporation, partnership, person or otherwise cooperate in any way with, any person other entity or group (other than ParentParent and Purchaser, Purchaser any affiliate or associate of Parent and their Representatives) with respect to any Acquisition ProposalPurchaser, or (iii) waive, terminate, modify or fail to enforce any provision designees of any contractual “standstill” or similar obligation of any person other than Parent or its affiliates. The Company immediately shallPurchaser) concerning any Takeover Proposal; provided, and shall cause the Company Subsidiaries and shall instruct each of their respective Representatives immediately to, cease and cause to be terminated any and all discussions or negotiations with any person that may be ongoing with respect to any Acquisition Proposal and request the prompt return or destruction of all confidential information provided to any such party prior to the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the contrary herein, prior to the Acceptance Date, nothing in response to a bona fide written Acquisition Proposal that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) is, or is reasonably likely to result in, a Superior Proposal, and which Acquisition Proposal did not result from or arise in connection with a breach of this Section 7.5(a) and was made after the date hereof, the Company may, subject to compliance with Section 7.5(c), (x) furnish information regarding the Company and the Company Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement (which 7.2 shall permit the Company to comply with the terms of Section 7.5(c)) containing confidentiality and standstill provisions not less restrictive to such person than the provisions of the Confidentiality Agreement are to Parent; provided that all such information has previously been provided to Parent or is provided to Parent prior to or concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, but only if and to the extent that in connection with the foregoing clauses (x) and (y), the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, and provided, the Company shall not take any of the actions referred to in the foregoing clauses (x) and (y) unless the Company shall have notified Parent in writing at least three (3) business days prior to taking such action that it intends to take such action and the basis hereunder therefor. In addition, notwithstanding the foregoing, prior to the Acceptance Date, the Company may, to the extent the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, not enforce any confidentiality, standstill or similar agreement to which prevent the Company or any Company Subsidiary is a party for the sole purpose Board of allowing the other party to such agreement to submit an Acquisition Proposal, or with respect to another party that has submitted an Acquisition Proposal, solely with respect to such submission, that will constitute, or is reasonably likely to lead to, a Superior Proposal, that did not, in each case, result from a breach by Directors of the Company of this Section 7.5.from
Appears in 2 contracts
Samples: Merger Agreement (Textron Inc), Merger Agreement (Omniquip International Inc)
No Solicitation of Transactions. (a) Except as set forth in this Section 7.56.3, until the earlier of the Control Date or the termination of this Agreement in accordance with the terms hereof, the Company shall not, and shall cause the Company Subsidiaries not to, and shall not authorize or permit its and the Company Subsidiaries shall not, nor shall they authorize or knowingly permit any of their Subsidiaries’ respective Representatives to, directly or indirectly (i) solicit, initiate, knowingly encourage or knowingly facilitate any Acquisition Proposal or the making thereof, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish any information to, or otherwise cooperate in any way with, any person (other than ParentThird Party or their Representatives that is seeking to make, Purchaser and their Representatives) with respect to or has made, any Acquisition Proposal, or (iii) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or confidentiality or similar obligation of any person other than Parent Third Party. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Company Subsidiary or its affiliatesany Representative of the Company or any Company Subsidiary shall be a breach of this Section 6.3 by the Company. The Company immediately shall, and shall cause the Company Subsidiaries and shall instruct each of their respective Representatives immediately to, cease and cause to be terminated any and all discussions or negotiations with any person that may be ongoing with respect to, or that would reasonably be expected to lead to, any Acquisition Proposal and request the prompt return or destruction of all confidential information provided to any such party person or its Representatives prior to the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the contrary herein, prior to obtaining the Acceptance DateRequired Company Vote, in response to a bona fide unsolicited written Acquisition Proposal made after the date hereof, that did not result from or arise out of a breach of this Section 6.3, and that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) is, or is reasonably likely to result inlead to, a Superior Proposal, and which Acquisition Proposal did not result from or arise in connection with a breach of this Section 7.5(a) and was made after the date hereof, the Company may, subject to compliance with Section 7.5(c6.3(c), (x) furnish information regarding the Company and the Company Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement (which shall permit the Company to comply with the terms of Section 7.5(c6.3(c)) containing confidentiality and standstill other provisions not less restrictive to such person Third Party than the provisions of the Confidentiality Agreement are to Parent; provided provided, however, that all such information has previously been provided made available to Parent or is provided made available to Parent prior to to, or concurrent with with, the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, but only if and to the extent that but, in connection with the foregoing clauses (x) and (y), only if the Company Board determines in good faith (after Table of Contents consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that the failure to take such action is necessary would reasonably be expected to comply with be a breach of its fiduciary duties under applicable Law, and provided, however, that the Company shall not take any of the actions referred to in the foregoing clauses (x) and (y) unless the Company shall have notified Parent in writing writing, at least three two (32) business days prior to taking such action action, that it intends to take such action and the basis hereunder therefor. In addition, notwithstanding the foregoing, prior to the Acceptance Date, the Company may, to the extent the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, not enforce any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party for the sole purpose of allowing the other party to such agreement to submit an Acquisition Proposal, or with respect to another party that has submitted an Acquisition Proposal, solely with respect to such submission, that will constitute, or is reasonably likely to lead to, a Superior Proposal, that did not, in each case, result from a breach by the Company of this Section 7.5.
Appears in 1 contract
Samples: Merger Agreement (Intel Corp)
No Solicitation of Transactions. (a) Except as set forth in this Section 7.5, until the earlier None of the Control Date or the termination of this Agreement in accordance with the terms hereofCompany, the Company and the Company Subsidiaries shall not, nor shall they authorize Subsidiary or knowingly permit any of their respective Representatives tothe Former Subsidiaries shall, directly or indirectly indirectly, take (nor shall the Company authorize or permit its Representatives or, to the extent within the Company’s control, other affiliates to take) any action to (i) encourage (including by way of furnishing nonpublic information), solicit, initiate, knowingly encourage initiate or knowingly facilitate any Acquisition Proposal or the making thereof(as defined in Section 6.04(c)), (ii) enter intointo any letter of intent, continue term sheet or otherwise other agreement with respect to any Acquisition Proposal or (iii) participate in any way in discussions or negotiations regardingwith, or furnish any information to, or otherwise cooperate any person in any way connection with, or take any person other action to facilitate any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to the obtaining of the Company Stockholders’ Approval, the Board of Directors of the Company determines in good faith, based on the advice of outside counsel, that it is necessary to do so to discharge properly its fiduciary duties to stockholders, the Company may, in response to a Superior Proposal (other than Parentas defined below) and subject to such party’s compliance with Section 6.04(b), Purchaser and their Representatives(A) furnish information with respect to the Company and the Company Subsidiary to the person making such Superior Proposal pursuant to a customary confidentiality agreement the terms of which are no less favorable to the Company than the terms of the Confidentiality Agreement and (B) participate in discussions with respect to such Superior Proposal. Without limiting the foregoing, it is agreed that any Acquisition Proposal, or (iiiviolation of the restrictions set forth in this Section 6.04(a) waive, terminate, modify or fail by any Representative of the Company shall be deemed to enforce any provision be a breach of any contractual “standstill” or similar obligation of any person other than Parent or its affiliatesthis Section 6.04(a) by the Company. The Company shall cease immediately shall, and shall cause the Company Subsidiaries and shall instruct each of their respective Representatives immediately to, cease and cause to be terminated any and all existing discussions or negotiations with any person that may be ongoing parties conducted heretofore with respect to any an Acquisition Proposal and promptly request the prompt return or destruction of that all confidential information provided to any such party prior to the date furnished on behalf of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the contrary herein, prior to the Acceptance Date, in response to a bona fide written Acquisition Proposal that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) is, or is reasonably likely to result in, a Superior Proposal, and which Acquisition Proposal did not result from or arise in connection with a breach of this Section 7.5(a) and was made after the date hereof, the Company may, subject to compliance with Section 7.5(c), (x) furnish information regarding the Company and the Company Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement (which shall permit the Company to comply with the terms of Section 7.5(c)) containing confidentiality and standstill provisions not less restrictive to such person than the provisions of the Confidentiality Agreement are to Parent; provided that all such information has previously been provided to Parent or is provided to Parent prior to or concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, but only if and to the extent that in connection with the foregoing clauses (x) and (y), the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, and provided, the Company shall not take any of the actions referred to in the foregoing clauses (x) and (y) unless the Company shall have notified Parent in writing at least three (3) business days prior to taking such action that it intends to take such action and the basis hereunder therefor. In addition, notwithstanding the foregoing, prior to the Acceptance Date, the Company may, to the extent the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, not enforce any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party for the sole purpose of allowing the other party to such agreement to submit an Acquisition Proposal, or with respect to another party that has submitted an Acquisition Proposal, solely with respect to such submission, that will constitute, or is reasonably likely to lead to, a Superior Proposal, that did not, in each case, result from a breach by the Company of this Section 7.5be returned.
Appears in 1 contract
Samples: Merger Agreement (Healthextras Inc)
No Solicitation of Transactions. (a) Except as set forth in this Subject to Section 7.55.3(b), until the earlier of Effective Time or, if earlier, the Control Date or the termination of this Agreement in accordance with the terms hereofTermination Date, the Company and the Company Subsidiaries shall not, nor and shall they not authorize or knowingly permit any of its Subsidiaries or any of its or their respective Representatives todirectors, officers, employees, financial advisors, attorneys, accountants, agents and other representatives (collectively, “Representatives”), directly or indirectly indirectly, to (i) solicit, initiate, or take any action to knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any Acquisition Proposal inquiry, proposal or offer or afford access to the employees, business, properties, assets, books or records of the Company or any of its Subsidiaries with respect to, or the making thereofor completion of, any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information or data with respect to, or otherwise cooperate in any way with, any person (other than Parent, Purchaser and their Representatives) with respect to any Acquisition Proposal, Proposal or (iii) waiveresolve, terminatepropose or agree to do any of the foregoing. Subject to Section 5.3(b), modify or fail to enforce any provision of any contractual “standstill” or similar obligation of any person other than Parent or its affiliates. The the Company immediately shall, and shall cause each of its Subsidiaries and the Representatives of the Company and its Subsidiaries and shall instruct each of their respective Representatives immediately to, (x) immediately cease and cause to be terminated any and all existing discussions or negotiations with any person that may be ongoing Person (other than Parent and its affiliates) conducted heretofore with respect to any Acquisition Proposal and (y) promptly request and use commercially reasonable efforts to obtain the prompt return or cause the destruction of all copies of confidential information provided previously furnished to any such party prior Person.
(b) Notwithstanding anything to the contrary in Section 5.3(a), if at any time following the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the contrary herein, prior to the Acceptance Date, in response to (i) the Company receives a bona fide written Acquisition Proposal, (ii) such Acquisition Proposal that did not result from a breach of this Section 5.3, (iii) the Company Board of Directors determines in good faith (after consultation consulting with outside counsel and a financial advisor of nationally recognized reputationreputation selected by the Board of Directors (the “Company Financial Advisor”)) isthat such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (iv) the Board of Directors determines in good faith (after consulting with outside legal counsel) that not taking the actions referred to in clause (x) and (y) below would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, then the Company may at any time prior to the Acceptance Date (but in no event after such time) (x) furnish and make available information and data with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal pursuant to (and only pursuant to) an Acceptable Confidentiality Agreement; provided, that the Company provides Parent with written notice of its intention to enter into such Acceptable Confidentiality Agreement and the Company advises Parent of any information provided to any Person substantially concurrently with its delivery to such Person and substantially concurrently with such delivery the Company delivers to Parent all such information not previously provided to Parent and (y) enter into, maintain and participate in discussions or negotiations with the Person making such Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiations. The Company shall not terminate, waive, amend, release or modify any material provision of any confidentiality or standstill agreement to which it or any of its Subsidiaries is a party with respect to any Acquisition Proposal, and shall enforce the material provisions of any such agreement.
(c) Except as permitted in this Section 5.3(c), the Board of Directors shall not (x) (A) fail to make the Recommendation to the stockholders of the Company or withdraw (or modify or qualify in any manner adverse to Parent or Merger Sub) the approval, Recommendation or declaration of advisability by the Board of Directors of this Agreement, the Offer, the Merger or any of the other transactions contemplated hereby, (B) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (B)) or (C) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in this clause (c) (x) being referred to herein as an “Adverse Recommendation Change”), (y) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement constituting or directly related to, or which is intended to or would be reasonably likely to result inlead to, any Acquisition Proposal (each, an “Alternative Acquisition Agreement”), other than any Acceptable Confidentiality Agreements, or (z) resolve, agree or publicly propose to take any such actions. Notwithstanding the preceding sentence, at any time prior to the Acceptance Date (but in no event after such time) the Board of Directors may, if the Board of Directors determines in good faith (after consulting 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, taking into account all adjustments to the terms of this Agreement that may be offered by Parent pursuant to this Section 5.3(c), (x) make an Adverse Recommendation Change in response to a Superior Proposal, Proposal received after the date hereof and which Acquisition Proposal did that does not otherwise result from or arise in connection with a breach of this Section 7.5(a5.3 or (y) solely in response to either a Superior Proposal received after the date hereof and was that did not otherwise result from a breach of this Section 5.3, cause the Company to terminate this Agreement pursuant to Section 7.1(d)(ii); provided, however, that, in the case of a Superior Proposal, (A) (1) no Adverse Recommendation Change may be made and (2) no such termination of this Agreement may be made, in each case, until after the third Business Day following Parent’s receipt of written notice from the Company advising Parent that the Board of Directors intends to make an Adverse Recommendation Change or cause the Company to terminate this Agreement pursuant to Section 7.1(d)(ii), as the case may be, and specifying the relevant terms and conditions of (including the identity of the Persons making the Superior Proposal) any Superior Proposal that is the basis of the proposed action by the Board of Directors (it being understood and agreed that any material amendment to the financial terms of such Superior Proposal shall require a new written notice by the Company to Parent and an additional two Business Day period), and (B) during such three Business Day period (or any additional two Business Day period), the Company shall, and shall cause its financial and legal advisors to, negotiate with Parent in good faith (to the extent Parent seeks to negotiate) to enable Parent to make a counteroffer and make such adjustments to the terms and conditions of this Agreement as would enable the Board of Directors to proceed with its recommendation of this Agreement and not make such an Adverse Recommendation Change or cause the Company to terminate this Agreement and (C) the Board of Directors shall not make such an Adverse Recommendation Change or cause the Company to terminate this Agreement unless prior to the expiration of such three Business Day period (or any additional two Business Day period) Parent makes a definitive written proposal to amend this Agreement or the Offer or enter into an alternative transaction and the Board of Directors shall have considered such definitive written proposal in good faith and, after the expiration of such three Business Day period (or any additional two Business Day period), the Board of Directors shall have determined in good faith (after consulting with outside legal counsel and the Company Financial Advisor) that such Acquisition Proposal still constitutes a Superior Proposal.
(d) From and after the date hereof, the Company mayshall promptly advise Parent, subject to compliance with Section 7.5(c)orally and in writing, (x) furnish information regarding and in any event no later than 24 hours after receipt, in the event the Company or any of its Subsidiaries or its or its Subsidiaries’ Representatives receives any Acquisition Proposal together with the material terms and conditions (including the Company Subsidiaries to identity of the person Persons making such Acquisition Proposal (and its RepresentativesProposal) pursuant to a confidentiality agreement (which shall permit the Company to comply with the terms of Section 7.5(c)) containing confidentiality and standstill provisions not less restrictive to such person than the provisions of the Confidentiality Agreement are to Parent; provided that all such information has previously been provided to Parent or is provided to Parent prior to or concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Acquisition Proposal and a copy of any written documentation delivered to the Company or any of its Subsidiaries or its or its Subsidiaries’ Representatives in connection therewith. The Company shall keep Parent informed on a timely basis of the status and details (and its Representativesincluding, within 24 hours after the occurrence of any material amendment or modification) regarding of any such Acquisition Proposal, but only if including of all material developments with respect to any such Acquisition Proposal and shall provide Parent with copies of any additional written documentation delivered to the Company or any of its Subsidiaries or its or its Subsidiaries’ Representatives in connection therewith.
(e) Any violation of the provisions of this Section 5.3 by the Company’s Subsidiaries or the Company’s or its Subsidiaries’ Representatives shall be deemed to be a breach of this Section 5.3 by the Company.
(f) Neither the Company nor the Board of Directors shall take any action to (i) exempt any Person (other than Parent, Merger Sub and their respective affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any restrictive provision of any other Takeover Law) or otherwise cause such restrictions not to apply (except to the extent that in connection with the foregoing clauses (x) and (y), the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor execution of nationally recognized reputation) that this Agreement has such action is necessary to comply with its fiduciary duties under applicable Law, and provided, the Company shall not take any of the actions referred to in the foregoing clauses (x) and (y) unless the Company shall have notified Parent in writing at least three (3) business days prior to taking such action that it intends to take such action and the basis hereunder therefor. In addition, notwithstanding the foregoing, prior to the Acceptance Date, the Company may, an effect or to the extent that the Company Board determines in good faith (after consultation Tender Agreements are deemed to have such an effect with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, not enforce any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party for the sole purpose of allowing the other party respect to such agreement other Person) or (ii) render the Rights Agreement inapplicable to submit an any transaction included in the definition of Acquisition Proposal, or with respect resolve or agree to another party that has submitted an Acquisition Proposal, solely with respect to such submission, that will constitute, or is reasonably likely to lead to, a Superior Proposal, that did notdo any of the foregoing, in each case, result from unless such actions are taken concurrently with a breach by termination of this Agreement pursuant to Section 7.1(d)(ii).
(g) Nothing contained in this Agreement shall prohibit the Company or its Board of Directors from (i) taking and disclosing a position contemplated by Item 1012(a) of Regulation M-A, Rules 14e-2(a) or 14d-9 promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if, in the good faith judgment of the Board of Directors (after consulting with and receiving the advice of outside legal counsel) failure to do so would violate the disclosure requirements under applicable Law; provided, however, that in no event shall this Section 5.3(e) affect the obligations of the Company specified in Section 5.3(a), Section 5.3(b) and Section 5.3(c); and provided, further, that, unless such disclosure consists solely of a “stop, look and listen” communication containing only statements contemplated by Rule 14d-9(f) under the Exchange Act, any such disclosure will be deemed to be an Adverse Recommendation Change (including for purposes of Section 7.1(c)(i)) unless the Board of Directors publicly reaffirms the Recommendation within five Business Days.
(h) For purposes of this Section 7.5.Agreement:
Appears in 1 contract
No Solicitation of Transactions. (a) Except as set forth in From the date of this Section 7.5, Agreement until the earlier of the Control Closing Date or the termination of this Agreement in accordance with the terms hereofAgreement, the Company Seller shall not (and the Company Subsidiaries Seller shall not, nor shall they authorize or knowingly not permit any of its Subsidiaries or any of its or their respective Representatives officers, directors, 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 indirectly:
(i) solicit, initiateencourage, knowingly encourage engage in discussions, or knowingly facilitate negotiate with any Acquisition Proposal or the making thereof, Person with respect to (ii) enter into, continue or otherwise participate in any whether such discussions or negotiations regarding, are initiated by Seller or furnish otherwise) or take any information to, other action intended or otherwise cooperate in any way withdesigned to facilitate, any person inquiry or effort of any Person (other than Parent, Purchaser and their RepresentativesBuyer) with respect relating to any Acquisition Proposal;
(ii) provide information with respect to Seller or its Subsidiaries to any Person, or other than Buyer, relating to a possible Acquisition Proposal by any Person, other than Buyer;
(iii) waiveenter into an agreement with any Person, terminateother than Buyer, modify providing for a possible Acquisition Proposal; or
(iv) make or fail to enforce authorize any provision statement, recommendation, or solicitation in support of any contractual “standstill” or similar obligation of possible Acquisition Proposal by any person Person, other than Parent by Buyer. Notwithstanding the foregoing, if, prior to the earlier of the Closing and the date of the Stockholder Consent or other Stockholder Approval and subject to Section 6.4(b), (A) Seller has received an unsolicited Acquisition Proposal that did not result from a breach of this Section 6.4(a) and (B) the board of directors of Seller (upon the recommendation of the Special Committee) concludes in good faith (after consultation with a financial advisor of nationally recognized reputation and outside counsel) (1) that such Acquisition Proposal is reasonably likely to result in a Superior Proposal and (2) that such actions are required by the fiduciary obligations of the board of directors of Seller under Delaware Law, Seller may, subject to providing at least forty-eight (48) hours prior written notice to Buyer of its decision to take such action, (x) furnish information with respect to Seller or its affiliatesSubsidiaries to the Person or group making such Acquisition Proposal and its representatives pursuant to a confidentiality agreement with terms not materially more favorable to the Person making the Acquisition Proposal than those applicable to Buyer under the Confidentiality Agreement (it being understood that such confidentiality agreement shall not prohibit disclosure to Buyer of the terms and conditions of such Acquisition Proposal, including the identity of the Person making such Acquisition Proposal and any material changes thereto) and (y) participate in discussions and negotiations with such Person or group and its representatives. The Company immediately Seller shall, and shall cause the Company Subsidiaries and shall instruct each of their respective Representatives immediately its representatives to, cease and cause to be terminated any and immediately all discussions or and negotiations with any person that may be ongoing with respect to any Acquisition Proposal and request the prompt return or destruction of all confidential information provided to any such party have occurred prior to the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the contrary herein, prior to the Acceptance Date, in response to a bona fide written Acquisition Proposal regarding any proposal that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) isconstitutes, or may reasonably be expected to lead to, an Acquisition Proposal. For purposes of this Section 6.4, the term “Person” shall include any “group” as defined in the Exchange Act. Without limiting the foregoing, it is reasonably likely understood that any violation of the restrictions set forth in this Section 6.4 by any director, officer, or employee of Seller or its Subsidiaries or any investment banker, financial advisor, attorney, accountant, or other representative of Seller or its Subsidiaries shall be deemed to result in, a Superior Proposal, and which Acquisition Proposal did not result from or arise in connection with be a breach of this Section 7.5(aby Seller.
(b) and was made after Neither the date hereofboard of directors of Seller nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Buyer, the Company may, subject to compliance with Section 7.5(c), approval by board of directors of Seller or any such committee of this Agreement or the Contemplated Transactions; (xii) furnish information regarding the Company and the Company approve or cause or permit Seller or any of its Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality enter into any letter of intent, agreement (which shall permit the Company to comply with the terms of Section 7.5(c)) containing confidentiality and standstill provisions not less restrictive to such person than the provisions of the Confidentiality Agreement are to Parent; provided that all such information has previously been provided to Parent or is provided to Parent prior to or concurrent with the time it is provided to such personin principle, and (y) participate in discussions or negotiations with the person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposaldefinitive agreement, but only if and to the extent that in connection with the foregoing clauses (x) and (y), the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, and provided, the Company shall not take any of the actions referred to in the foregoing clauses (x) and (y) unless the Company shall have notified Parent in writing at least three (3) business days prior to taking such action that it intends to take such action and the basis hereunder therefor. In addition, notwithstanding the foregoing, prior to the Acceptance Date, the Company may, to the extent the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, not enforce any confidentiality, standstill or similar agreement to which the Company constituting or any Company Subsidiary is a party for the sole purpose of allowing the other party to such agreement to submit an Acquisition Proposalrelating to, or with respect to another party that has submitted an Acquisition Proposal, solely with respect to such submission, that will constitutewhich is intended to, or is reasonably likely to lead to, any Acquisition Proposal; (iii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal; or (iv) agree or resolve to take actions set forth in clauses (i), (ii), or (iii) of this sentence. Notwithstanding the foregoing, if (A) the board of directors of Seller receives a Superior Proposal that was unsolicited and did not otherwise result from a breach of Section 6.4(a), and the board of directors of Seller (upon the recommendation of the Special Committee) determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary obligations under Delaware Law, the board of directors of Seller may, during such period, in response to a Superior Proposal, that did notwithdraw or modify its approval of the Contemplated Transactions and this Agreement and, in each case, result from connection with a breach by the Company Superior Proposal as described in clause (A) of this Section 7.56.4(b), approve or recommend such Superior Proposal at any time after the tenth (10th) Business Day following Buyer’s receipt of written notice from Seller advising Buyer that the board of directors of Seller has received a Superior Proposal and intends to withdraw or modify its approval, identifying the Person making such Superior Proposal, specifying the financial and other material terms and conditions of such Superior Proposal, and, at Buyer’s request, negotiating with Buyer in good faith for at least three (3) days; or (B) the board of directors of Seller (upon the recommendation of the Special Committee) otherwise determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with such fiduciary obligations, the board of directors of Seller may withdraw or modify its approval of the Contemplated Transactions and this Agreement.
(c) Seller promptly, and in any event within twenty-four (24) hours, shall advise Buyer orally and in writing of any Acquisition Proposal or any inquiry with respect to or that could lead to any Acquisition Proposal, the identity of the Person or group making any such Acquisition Proposal or inquiry and the material terms of any such Acquisition Proposal or inquiry. Seller shall (i) keep Buyer reasonably informed of the status, including any change to the details, of any such Acquisition Proposal or inquiry and (ii) provide to Buyer as soon as practicable after receipt or delivery thereof (and in any event within forty-eight (48) hours) with copies of all material correspondence and other written material sent or provided to Seller or any of its Subsidiaries from any Third Party in connection with any Acquisition Proposal or inquiry or sent or provided by Seller or any of its Subsidiaries to any Third Party in connection with any Acquisition Proposal or inquiry.
(d) Nothing contained in this Section 6.4 shall prohibit Seller from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act or from making any required disclosure to Seller’s stockholders if, in the good faith judgment of the board of directors of Seller (upon the recommendation of the Special Committee), after consultation with outside counsel, failure so to disclose could be inconsistent with its obligations under applicable Law; provided, however, that except as set forth in Section 6.4(b), in no event shall Seller’s board of directors or any committee thereof withdraw or modify, or propose to withdraw or modify, its position with respect to this Agreement or the Contemplated Transactions or adopt, approve, or recommend, or propose to adopt, approve, or recommend any Acquisition Proposal.
(e) For purposes of this Agreement, “
Appears in 1 contract
Samples: Stock Purchase Agreement (Rockport Healthcare Group Inc)
No Solicitation of Transactions. (a) 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 and the Company Subsidiaries shall not, nor shall they authorize or knowingly permit any of their respective Representatives to, directly or indirectly (i) solicit, initiate, knowingly encourage or knowingly facilitate any Acquisition Proposal or the making thereof, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish any information to, or otherwise cooperate in any way with, any person (other than Parent, Purchaser and their Representatives) with respect to any Acquisition Proposal, or (iii) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or similar obligation of any person other than Parent or its affiliates. 6.4.1 The Company immediately shall, and shall cause each Company Subsidiary and the Company Subsidiaries and shall instruct each of their respective Representatives immediately to, immediately cease and cause to be terminated any and all discussions or negotiations with any person Third Parties (other than the Parent Representatives) that may be ongoing as of the date hereof with respect to an actual or potential Takeover Proposal. The Company shall use its reasonable best efforts to obtain, in accordance with the terms of any Acquisition Proposal and request applicable confidentiality agreement, the prompt return or destruction of all any confidential information provided previously furnished to any such party Person by the Company, any Company Subsidiary or any Company Representative. In addition, the Company shall not, and shall cause each Company Subsidiary and the Company Representatives not to, (a) directly or indirectly, solicit, initiate, or knowingly encourage or facilitate (including by way of furnishing non-public information or providing access to its properties, books, records or personnel) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to result in, a Takeover Proposal, (b) enter into any agreement or agreement in principle with respect to a Takeover Proposal or (c) engage in any negotiations or discussions regarding, or furnish or disclose to any Third Party any information with respect to, any Takeover Proposal; provided, however, that at any time prior to obtaining the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the contrary herein, prior to the Acceptance DateStockholder Approval, in response to a bona fide written Acquisition Takeover Proposal received by the Company after the date hereof that was not solicited in violation of this Section 6.4.1 and that the Company Board determines in good faith (after consultation with its outside legal counsel and a financial advisor of nationally recognized reputationadvisors) isconstitutes, or is could reasonably likely be expected to result inlead to, a Superior Proposal, and which Acquisition and, that the failure to take the actions set forth in clauses (x) or (y) below with respect to such Takeover Proposal did not result from or arise in connection would be inconsistent with a breach of this Section 7.5(a) and was made after the date hereofits fiduciary duties under applicable law, then the Company may, in response to such Takeover Proposal, subject to compliance with Section 7.5(c)6.4.2 and Section 6.4.3, (x) provide access to its properties, Contracts, personnel, books and records and furnish information regarding information, data and/or draft agreements with respect to the Company and the Company Subsidiaries to the person Person making such Acquisition Takeover Proposal (and its Representativesofficers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) pursuant to a confidentiality agreement (which shall permit the Company to comply with the terms of Section 7.5(c)) containing confidentiality and standstill provisions not less restrictive to such person than the provisions of the Confidentiality Agreement are to Parent; provided that all such information has previously been provided to Parent or is provided to Parent prior to or concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the person Person making such Acquisition Takeover Proposal (and its Representativesofficers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) regarding such Acquisition Takeover Proposal; provided, but only if that, prior to furnishing such information to or entering into discussions or negotiations with such Person, the Company shall receive from such Person an executed confidentiality agreement, the terms of which shall be substantially similar to, and not materially less favorable to the extent Company than, in the aggregate, those contained in the Confidentiality Agreement; provided, further that in connection with the foregoing clauses (x) and (y)Company shall promptly provide to Parent any non-public information concerning the Company or any of its Subsidiaries not previously provided to Parent or the Parent Representatives that is provided to the Person making such Takeover Proposal.
Section 6.4.2 Notwithstanding any provision of this Section 6.4 or Section 6.2 to the contrary, prior to obtaining the Stockholder Approval, the Company Board determines may (a) withdraw (or not continue to make) or modify, or publicly propose to withdraw (or not continue to make) or modify the Company Recommendation, (b) approve, recommend or adopt, or publicly propose to approve, recommend or adopt, a Superior Proposal (any action described in the foregoing clause (a) or this clause (b), a “Company Adverse Recommendation Change”) and/or (c) enter into an agreement regarding a Superior Proposal, if (x) in the case of an action described in clause (a), clause (b) or clause (c) above, the Company Board has determined in good faith (after consultation with its outside legal counsel and a financial advisor of nationally recognized reputationcounsel) that the failure to take such action is necessary to comply would be inconsistent with its the fiduciary duties of the members of the Company Board to the holders of shares of Company Common Stock under applicable Law, and provided, the Company shall not take any of the actions referred to in the foregoing clauses (x) and (y) unless in the case of an action described in clause (b) or clause (c) above, (A) the Company shall have notified has given Parent in writing at least three (3) business five days prior to taking such action that it intends written notice of its intention to take such action (it being understood and the basis hereunder therefor. In addition, notwithstanding the foregoing, prior agreed that any change to the Acceptance Date, the Company may, consideration offered or other material terms of such Superior Proposal shall require an additional notice to the extent Parent and a new five day notice period) and (B) the Company Board determines shall have considered in good faith (after consultation with its outside legal counsel and financial advisors) any changes or revisions to this Agreement proposed in writing by Parent and shall not have determined that the Superior Proposal would no longer constitute a financial advisor Superior Proposal if such changes were to be given effect and (z) in the case of nationally recognized reputationan action described in clause (c) above, (A) the Company has complied in all material respects with its obligations under this Section 6.4 and (B) the Company shall have terminated this Agreement in accordance with the provisions of Section 8.1(c)(ii) hereof and the Company pays Parent the Company Termination Fee in accordance with Section 8.4.1.
Section 6.4.3 The Company shall promptly (and in any event within three Business Days) advise Parent orally and in writing of the receipt of any Takeover Proposal, along with the identity of the Person making any such Takeover Proposal and the Company shall provide Parent with a copy or a written summary of the material terms of any such Takeover Proposal. The Company shall keep Parent reasonably informed of the status (including any change to the material terms) of any such Takeover Proposal. Following determination by the Company Board that a Takeover Proposal constitutes a Superior Proposal, the Company shall deliver to Parent a written notice advising it that the Company Board has made such determination and specifying the material terms of such Superior Proposal. The Company agrees that it shall not, and shall cause the Company Subsidiaries not to, enter into any confidentiality agreement or other 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 its Subsidiaries shall terminate, waive, amend or modify any provision or any existing standstill or confidentiality agreement to which it or any of its Subsidiaries is a party, unless failure by the Company Board to take such action is necessary to comply would be inconsistent with its fiduciary duties under applicable LawLaw (in which case, not enforce any confidentialitysuch termination, standstill waiver, amendment or similar agreement modification shall also apply to which the Confidentiality Agreement, to the extent applicable).
Section 6.4.4 Notwithstanding anything to the contrary contained herein, nothing in this Section 6.4 shall prohibit or restrict the Company or the Company Board from (a) 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 or (b) making any disclosure to the stockholders of the Company Subsidiary is a party for if, in the sole purpose good faith judgment of allowing the other party to Company Board, such agreement to submit an Acquisition Proposaldisclosure would be reasonably necessary under applicable Law (including Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act); provided, or with respect to another party that has submitted an Acquisition Proposal, solely with respect to such submissionhowever, that will constitute, or is reasonably likely to lead to, a Superior Proposal, that did not, in each case, result from a breach by no event shall this Section 6.4.4 affect the obligations of the Company of this specified in Section 7.56.4.2.
Appears in 1 contract
Samples: Merger Agreement (Guitar Center Inc)
No Solicitation of Transactions. (a) 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 The Company and the Company Subsidiaries shall notagrees that neither it nor any Subsidiary shall, nor shall they it authorize or knowingly permit any the Representatives of their respective Representatives the Company or its Subsidiaries to, directly or indirectly indirectly: (i) solicit, initiate, knowingly solicit or encourage (including by way of furnishing information or knowingly facilitate assistance) any Acquisition Proposal inquiries or the making thereofof any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction Proposal (as defined below), (ii) enter into, continue or otherwise participate in any into discussions or negotiations regardingnegotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction Proposal, (iii) enter into any agreement with respect to a Competing Acquisition Proposal, (iv) agree to or endorse any Competing Transaction Proposal, or furnish (v) authorize any of the officers or directors of the Company or any of its Subsidiaries to take any such action, and the Company shall use its reasonable efforts to cause the directors, officers, employees, agents and representatives of the Company and its Subsidiaries (including, without limitation, any investment banker, financial advisor, attorney or accountant retained by the Company) not to take any such action. Nothing contained in this Section 6.02 shall prohibit the Board of Directors of the Company from furnishing information to, or otherwise cooperate in any way entering into discussions or negotiations with, any person (other than Parentor entity that makes an unsolicited, Purchaser and their Representatives) with respect to any Acquisition Proposal, or (iii) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or similar obligation of any person other than Parent or its affiliates. The Company immediately shall, and shall cause the Company Subsidiaries and shall instruct each of their respective Representatives immediately to, cease and cause to be terminated any and all discussions or negotiations with any person that may be ongoing with respect to any Acquisition Proposal and request the prompt return or destruction of all confidential information provided to any such party prior to the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the contrary herein, prior to the Acceptance Date, in response to a bona fide expression of interest in writing to enter into a Competing Transaction Proposal if: (A) the Board of Directors of the Company, after consultation with and receipt of written Acquisition Proposal that the Company Board advice from Sxxxxxx, Sxxxxxx & Dxxxxxx L.L.P. (or other outside counsel of nationally recognized reputation), determines in good faith (after consultation with outside counsel and by a financial advisor of nationally recognized reputation) is, or majority vote that the failure to do so is reasonably likely to result in, in a Superior Proposal, and which Acquisition Proposal did not result from or arise in connection with a breach violation by the Board of this Section 7.5(a) and was made after the date hereof, the Company may, subject to compliance with Section 7.5(c), (x) furnish information regarding the Company and the Company Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement (which shall permit the Company to comply with the terms Directors of Section 7.5(c)) containing confidentiality and standstill provisions not less restrictive to such person than the provisions of the Confidentiality Agreement are to Parent; provided that all such information has previously been provided to Parent or is provided to Parent prior to or concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, but only if and to the extent that in connection with the foregoing clauses (x) and (y), the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties to the Company’s shareholders under applicable Law, (B) the Board of Directors of the Company has no reason to believe that the expression of interest is not made in good faith, (C) promptly after furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides verbal notice within 24 hours and providedwritten notice within 48 hours to Parent to the effect that it plans to furnish information to, or enter into discussions or negotiations with, such person or entity, (D) prior to furnishing such information to such person or entity, the Company receives from such person or entity an executed confidentiality agreement, with terms reasonably satisfactory to the Company, and (E) the Company keeps Parent fully informed, on a current basis, of the status of any such discussions or negotiations including the terms and conditions of any such Competing Transaction Proposal, provided that any disclosure of such terms and conditions shall be covered by the confidentiality agreement dated December 8, 2004, as amended to date, between Parent and the Company (the “Confidentiality Agreement”). If any Competing Transaction Proposal is in writing, the Company shall not take furnish a copy of the same to Parent within two (2) business day after Company receives the same, and any updates or amendments thereto within two (2) business day after receipt.
(b) For purposes of this Agreement, “Competing Transaction Proposal” shall mean any of the actions referred to in the foregoing clauses (x) and (y) unless the Company shall have notified Parent in writing at least three (3) business days prior to taking such action that it intends to take such action and the basis hereunder therefor. In addition, notwithstanding the foregoing, prior to the Acceptance Date, the Company may, to the extent the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, not enforce any confidentiality, standstill or similar agreement to which following involving the Company or any Company Subsidiary is a party for of its Subsidiaries (other than the sole purpose of allowing the other party to such agreement to submit an Acquisition Proposaltransactions contemplated by this Agreement): (i) any merger, consolidation, share exchange, business combination, or with respect to another party that has submitted an Acquisition Proposalother similar transaction; (ii) any direct or indirect sale, solely with respect to such submissionlease, that will constituteexchange, mortgage, pledge, transfer or is reasonably likely to lead toother disposition of twenty-five percent (25%) or more of the assets of the Company and its Subsidiaries, taken as a Superior Proposal, that did notwhole, in each case, result from a breach by single transaction or a series of related transactions; or (iii) any tender offer (including a self-tender offer) or exchange offer for twenty-five percent (25%) or more of the outstanding Shares of the Company or the filing of this Section 7.5a registration statement under the Securities Act, in connection therewith.
Appears in 1 contract
No Solicitation of Transactions. (a) Except as set forth in this Subject to Section 7.55.3(b), until the earlier of Effective Time or, if earlier, the Control Date or the termination of this Agreement in accordance with the terms hereofTermination Date, the Company and the Company Subsidiaries shall not, nor and shall they not authorize or knowingly permit any of its Subsidiaries or any of its or their respective Representatives todirectors, officers, employees, financial advisors, attorneys, accountants, agents and other representatives (collectively, “Representatives”), directly or indirectly indirectly, to (i) solicit, initiate, or take any action to knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any Acquisition Proposal inquiry, proposal or offer or afford access to the employees, business, properties, assets, books or records of the Company or any of its Subsidiaries with respect to, or the making thereofor completion of, any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information or data with respect to, or otherwise cooperate in any way with, any person (other than Parent, Purchaser and their Representatives) with respect to any Acquisition Proposal, Proposal or (iii) waiveresolve, terminatepropose or agree to do any of the foregoing. Subject to Section 5.3(b), modify or fail to enforce any provision of any contractual “standstill” or similar obligation of any person other than Parent or its affiliates. The the Company immediately shall, and shall cause each of its Subsidiaries and the Representatives of the Company and its Subsidiaries and shall instruct each of their respective Representatives immediately to, (x) immediately cease and cause to be terminated any and all existing discussions or negotiations with any person that may be ongoing Person (other than Parent and its affiliates) conducted heretofore with respect to any Acquisition Proposal and (y) promptly request and use commercially reasonable efforts to obtain the prompt return or cause the destruction of all copies of confidential information provided previously furnished to any such party prior Person.
(b) Notwithstanding anything to the contrary in Section 5.3(a), if at any time following the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the contrary herein, prior to the Acceptance Date, in response to (i) the Company receives a bona fide written Acquisition Proposal, (ii) such Acquisition Proposal that did not result from a breach of this Section 5.3, (iii) the Company Board of Directors determines in good faith (after consultation consulting with outside counsel and a financial advisor of nationally recognized reputationreputation selected by the Board of Directors (the “Company Financial Advisor”)) is, that such Acquisition Proposal constitutes or is could reasonably likely be expected to result in, lead to a Superior Proposal, Proposal and which Acquisition Proposal did (iv) the Board of Directors determines in good faith (after consulting with outside legal counsel) that not result from or arise taking the actions referred to in connection with a breach of this Section 7.5(aclause (x) and was made after (y) below would be inconsistent with its fiduciary duties to the date hereof, stockholders of the Company mayunder applicable Law, subject then the Company may at any time prior to compliance with Section 7.5(c), the Acceptance Date (but in no event after such time) (x) furnish and make available information regarding and data with respect to the Company and the Company its Subsidiaries to the person Person making such Acquisition Proposal pursuant to (and its Representativesonly pursuant to) pursuant to a confidentiality agreement (which shall permit an Acceptable Confidentiality Agreement; provided, that the Company provides Parent with written notice of its intention to comply enter into such Acceptable Confidentiality Agreement and the Company advises Parent of any information provided to any Person substantially concurrently with the terms of Section 7.5(c)) containing confidentiality and standstill provisions not less restrictive its delivery to such person than Person and substantially concurrently with such delivery the provisions of the Confidentiality Agreement are Company delivers to Parent; provided that Parent all such information has not previously been provided to Parent or is provided to Parent prior to or concurrent with the time it is provided to such person, and (y) enter into, maintain and participate in discussions or negotiations with the person Person making such Acquisition Proposal (and or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiations. The Company shall not terminate, waive, amend, release or modify any material provision of any confidentiality or standstill agreement to which it or any of its Representatives) regarding such Subsidiaries is a party with respect to any Acquisition Proposal, but only if and to shall enforce the extent that in connection with the foregoing clauses (x) and (y), the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor material provisions of nationally recognized reputation) that any such action is necessary to comply with its fiduciary duties under applicable Law, and provided, the Company shall not take any of the actions referred to in the foregoing clauses (x) and (y) unless the Company shall have notified Parent in writing at least three (3) business days prior to taking such action that it intends to take such action and the basis hereunder therefor. In addition, notwithstanding the foregoing, prior to the Acceptance Date, the Company may, to the extent the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, not enforce any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party for the sole purpose of allowing the other party to such agreement to submit an Acquisition Proposal, or with respect to another party that has submitted an Acquisition Proposal, solely with respect to such submission, that will constitute, or is reasonably likely to lead to, a Superior Proposal, that did not, in each case, result from a breach by the Company of this Section 7.5agreement.
Appears in 1 contract
Samples: Merger Agreement (Crane Co /De/)
No Solicitation of Transactions. (a) Except as set forth in this Section 7.56.3, until the earlier of the Control Date or the termination of this Agreement in accordance with the terms hereof, the Company shall not, and shall cause the Company Subsidiaries not to, and shall not authorize or permit its and the Company Subsidiaries shall not, nor shall they authorize or knowingly permit any of their Subsidiaries’ respective Representatives to, directly or indirectly (i) solicit, initiate, knowingly encourage or knowingly facilitate any Acquisition Proposal or the making thereof, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish any information to, or otherwise cooperate in any way with, any person (other than ParentThird Party or their Representatives that is seeking to make, Purchaser and their Representatives) with respect to or has made, any Acquisition Proposal, or (iii) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or confidentiality or similar obligation of any person other than Parent Third Party. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Company Subsidiary or its affiliatesany Representative of the Company or any Company Subsidiary shall be a breach of this Section 6.3 by the Company. The Company immediately shall, and shall cause the Company Subsidiaries and shall instruct each of their respective Representatives immediately to, cease and cause to be terminated any and all discussions or negotiations with any person that may be ongoing with respect to, or that would reasonably be expected to lead to, any Acquisition Proposal and request the prompt return or destruction of all confidential information provided to any such party person or its Representatives prior to the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the contrary herein, prior to obtaining the Acceptance DateRequired Company Vote, in response to a bona fide unsolicited written Acquisition Proposal made after the date hereof, that did not result from or arise out of a breach of this Section 6.3, and that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) is, or is reasonably likely to result inlead to, a Superior Proposal, and which Acquisition Proposal did not result from or arise in connection with a breach of this Section 7.5(a) and was made after the date hereof, the Company may, subject to compliance with Section 7.5(c6.3(c), (x) furnish information regarding the Company and the Company Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement (which shall permit the Company to comply with the terms of Section 7.5(c6.3(c)) containing confidentiality and standstill other provisions not less restrictive to such person Third Party than the provisions of the Confidentiality Agreement are to Parent; provided provided, however, that all such information has previously been provided made available to Parent or is provided made available to Parent prior to to, or concurrent with with, the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, but only if and to the extent that but, in connection with the foregoing clauses (x) and (y), only 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 is necessary would reasonably be expected to comply with be a breach of its fiduciary duties under applicable Law, and provided, however, that the Company shall not take any of the actions referred to in the foregoing clauses (x) and (y) unless the Company shall have notified Parent in writing writing, at least three two (32) business days prior to taking such action action, that it intends to take such action and the basis hereunder therefor. In addition, notwithstanding the foregoing, prior to the Acceptance Date, the Company may, to the extent the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, not enforce any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party for the sole purpose of allowing the other party to such agreement to submit an Acquisition Proposal, or with respect to another party that has submitted an Acquisition Proposal, solely with respect to such submission, that will constitute, or is reasonably likely to lead to, a Superior Proposal, that did not, in each case, result from a breach by the Company of this Section 7.5.
Appears in 1 contract
Samples: Merger Agreement (McAfee, Inc.)
