No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement.
Appears in 7 contracts
Samples: Shareholder Agreement (Fidelity National Financial Inc /De/), Shareholder Agreement (Fidelity National Financial Inc /De/), Shareholder Agreement (Fidelity National Financial Inc /De/)
No Solicitation of Transactions. The Shareholder, subject (a) At any time subsequent to the last sentence date hereof, and prior to the earlier to occur of this Section 3.3, agrees that from the date Closing or the termination of this Agreement until under Section 8.1, Seller, its Affiliates and the Termination Date, the Shareholder NOARK Group shall not, directly or indirectly, northrough any officer, in case the Shareholder is a corporation director, agent or other entityemployee of, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it by, Seller, the NOARK Group or any of its Subsidiaries their respective Affiliates (collectively, the "REPRESENTATIVES"each a “Seller Party”) to, directly or indirectly, (i) solicit, initiate initiate, seek or encourage (including by means way of furnishing nonpublic information), information or assistance) or take any other action to facilitate, facilitate any inquiries or the making submission of any proposal which constitutes or offer with respect to, or that may reasonably may be expected to lead to to, an Acquisition Proposal from any person other than Buyer (a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement“Third Party”), or enter into or maintain or continue (ii) engage in any discussions or negotiate with any person negotiations relating thereto or entity in furtherance thereof or accept any Acquisition Proposal. Seller, any member of such inquiries or the NOARK Group and their respective Affiliates shall notify Buyer if a written Acquisition Proposal has been received. Seller, the NOARK Group and their respective Affiliates agree not to obtain a Competing Transactionrelease any Third Party from, or agree waive any provision of, any confidentiality agreement relating to or endorse any Competing Transaction, other than with Parent or an affiliate the sale of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offerthe Business, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity member of the party making NOARK Group.
(b) Upon execution by Seller of this Agreement, Seller and its Affiliates will terminate any such proposalsolicitations, offerencouragement, inquiry or contactactivities, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact discussions and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties Person other than Buyer conducted heretofore by Seller, its Affiliates or the NOARK Group with respect to a Competing Transaction. Notwithstanding any Acquisition Proposal until the provisions earlier of Closing or termination of this Agreement pursuant to Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement8.1.
Appears in 4 contracts
Samples: Securities Purchase Agreement (Spectra Energy Partners, LP), Securities Purchase Agreement (Atlas Pipeline Holdings, L.P.), Securities Purchase Agreement (Atlas Pipeline Partners Lp)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date of this Agreement until the Termination Date, the Shareholder shall it will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall and that it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any will cause each of its Subsidiaries (collectively, the "REPRESENTATIVES") not to and will direct each of its and its Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate or encourage (including by means of furnishing nonpublic information)initiate, seek or take any other action to facilitatefacilitate or knowingly encourage the making, any inquiries submission or the making announcement of any proposal or offer with respect tothat constitutes, or that would be reasonably may be expected to lead to a proposal any Competing Proposal, (ii) enter into, maintain, continue or offer forparticipate in any discussions or negotiations with any Person or entity in furtherance of, or furnish to any Person any information or otherwise cooperate in any way with respect to, any Competing Proposal, (iii) agree to, approve, endorse, recommend or consummate any Competing Proposal, (iv) enter into, or propose to enter into, any Competing Transaction (as defined in the Merger Agreement), or enter into (v) resolve, propose or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transactionagree, or agree authorize or permit any Representative to or endorse do any Competing Transaction, other than with Parent or an affiliate of Parentthe foregoing. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeCompany shall, and the Shareholder shall promptly inform Parent as cause its Subsidiaries to the material details of any such proposaland will direct its and its Subsidiaries’ Representatives to, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties Persons conducted heretofore prior to the execution of this Agreement by the Company, any of its Subsidiaries or its or any of their respective Representatives with respect to any Competing Proposal, request the prompt return or destruction of all confidential information previously furnished and terminate access to any physical or electronic data rooms related to a potential Competing Proposal previously granted to such Person.
(b) The Company shall promptly, and in any event within 24 hours of the Company obtaining knowledge of the receipt thereof, advise Parent in writing of any Competing Proposal, the financial and other material terms and conditions of any such Competing Proposal (including any changes thereto) and the identity of the Person making any such Competing Proposal. The Company shall (i) keep Parent reasonably informed of the status and material details (including any change to the terms thereof) of any such Competing Proposal and (ii) provide to Parent, as soon as practicable after receipt or delivery thereof (and in any event, within 24 hours of such receipt or delivery), copies of all correspondence (other than non-substantive written correspondence) and other written material (including all draft and final versions (and any amendments thereto) of agreements (including schedules and exhibits thereto) and any comments thereon) relating to any such Competing Proposal exchanged between the Company or any of its Subsidiaries (or their Representatives), on the one hand, and the Person making such Competing Proposal (or its Representatives), on the other hand.
(c) Notwithstanding anything to the contrary in this Agreement, at any time prior to the receipt of the Company Stockholder Approvals, the Company may, subject to compliance with Section 7.02(b), furnish information to, and enter into discussions with, a Person who has made, after the date hereof, an unsolicited, written, bona fide Competing Proposal so long as such Competing Proposal did not result from a breach of this Section 7.02 and, prior to furnishing such information and entering into such discussions, the Company Board has (i) reasonably determined, in its good faith judgment (after having received the advice of a financial advisor of nationally recognized reputation and outside legal counsel) that (A) such Competing Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such Competing Proposal would be inconsistent with the Company Board’s fiduciary duties to the Company and its stockholders under applicable Law, (ii) previously provided all such information to Parent (or provides such information to Parent substantially concurrent with the time it is provided to such Person), and (iii) obtained from such Person an Acceptable Confidentiality Agreement.
(d) Except as set forth in this Section 7.02(d), neither the Company Board nor any committee thereof shall (i) (A) fail to make, withdraw, qualify, modify or amend, or propose publicly to fail to make, withdraw, qualify, modify or amend, the Company Recommendation or fail to include the Company Recommendation in the Consent Solicitation Statement, (B) adopt or recommend, or propose publicly to adopt or recommend, any Competing Proposal, or (C) enter into any agreement relating to a Competing TransactionProposal (other than an Acceptable Confidentiality Agreement), or (ii) make any public statement inconsistent with the Company Recommendation (any of the actions described in the foregoing clauses (i) and (ii), a “Change in the Company Recommendation”). Notwithstanding the provisions of this Section 3.3foregoing, a Shareholder who is also a director or officer if at any time prior to the receipt of the Company Stockholder Approvals and subject to compliance with Section 7.02(b) the Company Board determines in its good faith judgment (after having received the advice of a financial advisor of nationally recognized reputation and outside legal counsel) that the failure of the Company Board to make a Change in the Company Recommendation would be inconsistent with the fiduciary duties of the Company Board to the Company and its stockholders under applicable Law, then the Company Board may take make a Change in the Company Recommendation; provided, however, that no Change in the Company Recommendation may be made that relates to a Competing Proposal unless such Competing Proposal constitutes a Superior Proposal; provided, further, that the Company shall not be entitled to exercise its right to make a Change in the Company Recommendation until after the fourth Business Day following Parent’s receipt of written notice from the Company advising Parent that the Company Board intends to make a Change in the Company Recommendation (a “Notice of Adverse Recommendation”) and specifying the reasons therefor, including the terms and conditions of any action in his capacity as such Superior Proposal and including an unredacted copy of any proposed agreement (including complying schedules and exhibits thereto) relating to such Superior Proposal (it being understood and agreed that any subsequent amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Adverse Recommendation and a three Business Day notice period). The Company agrees that, during the applicable four or three Business Day notice period prior to the Company Board making a Change in the Company Recommendation, the Company and its Representatives shall negotiate in good faith with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by Parent and its Representatives regarding any revisions to the terms of this Agreement proposed by Parent. In determining whether to make a Change in the Merger Company Recommendation, the Company Board shall take into account any changes to the financial or other terms of this Agreement proposed by Parent in response to a Notice of Adverse Recommendation or otherwise. At the end of the four Business Day notice period (or three Business Day notice period with respect to any amendment to the financial terms or any other material term of such Superior Proposal) the Company Board may effect a Change in the Company Recommendation if the Company Board shall again make a determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed by Parent), that the Competing Proposal continues to be a Superior Proposal and that the Change in the Company Recommendation is required to comply with the fiduciary duties of the Company Board to the Company and its stockholders under applicable Law.
(e) Notwithstanding anything in this Agreement to the contrary, (i) neither the Company Board nor any committee thereof shall withdraw, revoke, rescind, modify or amend in any manner the Drag-Along Resolution and (ii) in no event shall any Change in the Company Recommendation (A) affect the validity and enforceability of this Agreement or the other Transaction Documents, including the obligations of the Company and the Company’s stockholders that are party to the Transaction Documents to consummate the Mergers or the other Transactions and to deliver (or cause to be delivered) the written consent contemplated by Section 3(b) of the Selling Investor Support Agreement, or (B) cause any state corporate takeover statute or other similar statute to be applicable to the Mergers or the other Transactions.
Appears in 3 contracts
Samples: Merger Agreement (Grail, LLC), Merger Agreement (Grail, LLC), Merger Agreement (Illumina, Inc.)
No Solicitation of Transactions. The Shareholder(a) Each party to this Agreement agrees that, subject to the last sentence of this Section 3.3, agrees that from and after the date hereof until the earlier of the Effective Time and the termination of this Agreement until the Termination Datepursuant to Article VIII, the Shareholder it shall not, and shall not permit any of its Subsidiaries or any of its or its Subsidiaries’ directors, officers or employees to, and shall use its best efforts to cause its investment bankers, attorneys, accountants and other representatives retained by it or any of its Subsidiaries not to, directly or indirectly: (i) solicit, norinitiate 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 a Competing Transaction (as defined below); (ii) enter into or maintain or continue discussions or negotiations with any person or entity in case the Shareholder is furtherance of such inquiries or to obtain a corporation Competing Transaction; (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other entitycontract, shall it agreement or commitment contemplating or otherwise relating to any Competing Transaction; or (iv) authorize or permit any of its directorsthe officers, officers directors or employees of such party or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectivelysuch party, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or to take any such action. Each party to this Agreement shall notify the other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction party as promptly as practicable (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but and in any event within 24 hoursone day after such party attains knowledge thereof) notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder Each party to this Agreement immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Each party to this Agreement shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the provisions of contrary in this Section 3.36.04, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of Parent or the Company, as the case may be, may furnish, prior to approval of this Agreement, the Merger, the Share Issuance, the Parent Name Change, the New Stock Option Plans Adoption and the Parent Board Appointments at the Company Stockholders’ Meeting or the Parent Shareholders’ Meeting, as the case may be, information to, and enter into discussions with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction or otherwise facilitate any effort or attempt to make or implement a proposal or offer for a Competing Transaction, if such Board of Directors has (i) determined, in its good faith judgment (after having consulted with a financial advisor of internationally recognized reputation) that such proposal or offer is reasonably likely to lead to a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consultation with independent legal counsel (who may be such party’s regularly engaged independent legal counsel), that, in light of such proposal or offer regarding a Competing Transaction, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to Parent and its shareholders or the Company and its stockholders, respectively, under applicable Law, (iii) provided written notice to the other party of its intent to furnish information or enter into discussions with such person at least 24 hours prior to taking any such action, and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the other party than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not limited include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting such party from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 6.04(c), the Company Board shall not make a change in the Company Board Recommendation (a “Change in the Company Board Recommendation”) in a manner adverse to Parent or Merger Sub 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, prior to the approval of this Agreement and the Merger at the Company Stockholders’ Meeting, the Company Board determines, in its good faith judgment prior to the Effective Time and after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that it is required to make a Change in the Company Board Recommendation to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, the Company Board may recommend a Superior Proposal, but only (i) after providing written notice to Parent (a “Notice of Company Superior Proposal”) 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 Board Recommendation and the manner in which it intends (or may intend) to do so, and (ii) if Parent does not, within 48 hours of Parent’s receipt of the Notice of Company Superior Proposal, deliver to the Company a binding, written offer that the Company Board determines, in its good faith judgment (after having consulted with independent legal counsel and a financial advisor of internationally recognized reputation) to be at least as favorable to the Company’s stockholders as such Superior Proposal. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction under applicable Law or Rule 14d-9 or 14e-2 or that the Company Board determines to comply with its fiduciary duties to the Company and its stockholders will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the terms Company Board in violation of this Section 6.04(c). The obligation of the Merger Company to call, give notice of, convene and hold the Company Stockholders’ Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Company Board Recommendation, except in the event that this Agreement is terminated in accordance with Section 8.01(j). The Company shall not submit to the vote of its stockholders any Competing Transaction, or propose to do so, except in the event that this Agreement is terminated in accordance with Section 8.01(j).
(d) Except as set forth in this Section 6.04(d), the Parent Board shall not make a change in the Parent Board Recommendation (a “Change in the Parent Board Recommendation”) in a manner adverse to the Company or approve or recommend, or cause or permit Parent to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction. Notwithstanding the foregoing, if, prior to the approval of the Share Issuance, the Parent Name Change, the New Stock Option Plans Adoption and the Parent Board Appointments at the Parent Shareholders’ Meeting, the Parent Board determines, in its good faith judgment prior to the Effective Time and after consultation with independent legal counsel (who may be Parent’s regularly engaged independent legal counsel), that to make a Change in the Parent Board Recommendation is required to comply with its fiduciary obligations to Parent and its shareholders under applicable Law, the Parent Board may recommend a Superior Proposal, but only (i) after providing written notice to the Company (a “Notice of Parent Superior Proposal”) advising the Company that the Parent 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 Parent Board intends to effect a Change in the Parent Board Recommendation and the manner in which it intends (or may intend) to do so, and (ii) if the Company does not, within 48 hours of the Company’s receipt of the Notice of Parent Superior Proposal, deliver to Parent a binding written offer that the Parent Board determines, in its good faith judgment (after having consulted with independent legal counsel and a financial advisor of internationally recognized reputation) to be at least as favorable to Parent’s shareholders as such Superior Proposal. Any disclosure that the Parent Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction under applicable Law (including, without limitation, the Singapore Code of Take-overs and Mergers) or Rule 14d-9 or 14e-2 or the requirements of the Securities Industry Counsel or that the Parent Board determines to comply with its fiduciary duties to Parent and its shareholders will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the Parent Board in violation of this Section 6.04(d). The obligation of Parent to call, give notice of, convene and hold the Parent Shareholders’ Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Parent Board Recommendation, except in the event that this Agreement is terminated in accordance with Section 8.01(k). Parent shall not submit to the vote of its shareholders any Competing Transaction, or propose to do so, except in the event that this Agreement is terminated in accordance with Section 8.01(k).
(e) A “Competing Transaction” means with respect to the Company or Parent, as the case may be, any of the following (other than the Transactions): (i) a transaction, whether a merger, purchase of assets, tender offer or otherwise, which, if consummated, would result in a third party’s acquiring (A) more than 20% of the equity securities of the Company or of Parent, as the case may be, (B) all or substantially all of the assets of the Company and the Company Subsidiaries, taken as a whole, or of Parent and the Parent Subsidiaries, taken as a whole, or (C) is conditioned upon the non-consummation of the Transactions; (ii) in the case of the Company, any solicitation in opposition to approval and adoption of this Agreement by the Company’s stockholders; and (iii) in the case of Parent, any solicitation in opposition to approval of the Share Issuance, Parent Name Change, the New Stock Option Plans Adoption or the Parent Board Appointments by Parent’s shareholders.
Appears in 3 contracts
Samples: Merger Agreement (Chippac Inc), Merger Agreement (Chippac Inc), Agreement and Plan of Merger and Reorganization (Temasek Holdings LTD)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, Shareholder agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, nor shall it authorize or permit any of its directors, officers officers, partners or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its partners or Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement.
Appears in 3 contracts
Samples: Shareholder Agreement (Fidelity National Financial Inc /De/), Shareholder Agreement (Fidelity National Financial Inc /De/), Shareholder Agreement (Fidelity National Financial Inc /De/)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the (a) Each Shareholder shall not, directly or indirectlyand shall cause its shareholders, normembers, in case the Shareholder is a corporation partners, affiliates, officers, directors, trustees, employees, agents, advisors or other entityrepresentatives (including, shall it authorize or permit without limitation, any of its directors, officers or employees or any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries it) (collectively, the "REPRESENTATIVESShareholder Representatives") not to, directly or indirectly, between the date of this Agreement and the date of termination of the Merger Agreement, take any action to solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or facilitate the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its shareholders or other shareholders of the Company) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Acquisition Proposal or potential Acquisition Proposal, or enter into any inquiry with respect thereto, or maintain or continue discussions or negotiate in connection with any Acquisition Proposal or potential Acquisition Proposal, disclose any nonpublic information relating to the Company or the Company Subsidiaries or afford access to the properties, books or records of the Company or the Company Subsidiaries to any person or entity in furtherance of such inquiries that has made, or to obtain such person's knowledge, is considering making an Acquisition Proposal. Any violation of the foregoing restrictions by any of the Shareholder Representatives, whether or not such person is so authorized and whether or not any such person is purporting to act on behalf of any of the Shareholders or otherwise shall be deemed to be a Competing Transactionbreach of this Agreement by the applicable Shareholder.
(b) Upon receiving an Acquisition Proposal, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The each Shareholder shall promptly (but 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 event within 24 hours) notify Parent if any proposal or offerpreviously received Acquisition Proposal, or any inquiry request for nonpublic information relating to the Company or contactany Company Subsidiary or for access to the properties, constituting books or regarding a Competing Transaction is records of the Company or Company any Company Subsidiary by any person that has made, or to such party's knowledge may be considering making, an Acquisition Proposal, and the Shareholder shall promptly inform Parent as to the material details provide copies of any proposals, indications of interest, draft agreements and correspondence relating to such proposalAcquisition Proposal. Each Shareholder shall, offerand shall cause its respective Shareholder Representatives to, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated terminated, all existing discussions or negotiations and negotiations, if any, that have taken place prior to the date hereof with any parties conducted heretofore persons with respect to a Competing Transaction. Notwithstanding any Acquisition Proposal and shall request the provisions return or destruction of all confidential information provided to any such person.
(c) Each Shareholder agrees that it shall take the necessary steps promptly to inform its respective Shareholder Representatives of the obligations undertaken in this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement4.03.
Appears in 3 contracts
Samples: Voting Agreement (Medplus Inc /Oh/), Voting Agreement (Medplus Inc /Oh/), Voting Agreement (Medplus Inc /Oh/)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement.relating
Appears in 3 contracts
Samples: Shareholder Agreement (Fidelity National Financial Inc /De/), Shareholder Agreement (Fidelity National Financial Inc /De/), Shareholder Agreement (Fidelity National Financial Inc /De/)
No Solicitation of Transactions. The Shareholder, subject to Section 5.5.1 None of the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall notCompany or any Company Subsidiary shall, directly or indirectly, nor, in case take (and the Shareholder is a corporation or other entity, Company shall it not authorize or permit the Company Representatives or, to the extent within the Company's control, other affiliates to take) any action to (A) encourage (including by way of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectlyfurnishing non-public information), solicit, initiate or encourage facilitate any Acquisition Proposal, (including 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 means of furnishing nonpublic information)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 with respect tothat constitutes, or that could reasonably may be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to the obtaining of the Company's shareholders' approval of the Merger at the Company Shareholders Meeting, the Company Board (or an authorized committee thereof) determines in good faith, after consultation with outside counsel, that it would otherwise constitute a breach of the directors' fiduciary duties to shareholders, the Company may, in response to a proposal or offer forSuperior Proposal, any Competing Transaction (as defined in x) furnish information with respect to the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, Company and the Shareholder shall promptly inform Parent as Company Subsidiaries to the material details of any person making such proposal, offer, inquiry or contact, including Superior Proposal pursuant to a customary confidentiality agreement the identity benefits of the terms of which are no more favorable to the other party making any to such proposalconfidentiality agreement than those in place with Parent, offer(y) participate in discussions with respect to such Superior Proposal and (z) terminate this Agreement pursuant to Section 7.1.6. Upon execution of this Agreement, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately the Company shall cease immediately and cause to be terminated any and all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions an Acquisition Proposal.
Section 5.5.2 The Company shall, as promptly as practicable (and in no event later than one Business Day after receipt thereof), advise Parent of this Section 3.3, a Shareholder who is also a director or officer any inquiry received by it relating to any potential Acquisition Proposal and of the Company may take material terms of any action in his capacity as such (proposal or inquiry, including complying with or exercising his fiduciary duties as a member 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 or of any negotiations or discussions being sought to be initiated with it, shall furnish to Parent a copy of any such proposal or inquiry, if it is in writing, or a written summary of any such proposal or inquiry, if it is not in writing and shall keep Parent fully informed on a prompt basis with respect to any developments with respect to the foregoing.
Section 5.5.3 Neither the Company Board of Directors nor any committee thereof shall (A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by the Company Board or such committee of the Company) as is not limited by the terms adoption and approval of the Merger Agreement(the "Company Recommendation") and the matters to be considered at the Company Shareholders' Meeting, (B) other than the Merger, approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (C) other than the Merger, cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal. Nothing contained in this Section 5.5.3 shall prohibit the Company (x) from taking and disclosing to its shareholders 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 Company Board (or an authorized committee thereof) determines in good faith, after consultation with outside counsel, that it would otherwise constitute a breach of its fiduciary duty to shareholders, from terminating this Agreement pursuant to Section 7.1.6.
Appears in 2 contracts
Samples: Merger Agreement (Electronics for Imaging Inc), Merger Agreement (T/R Systems Inc)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall neither it authorize or permit nor any Subsidiary nor any of its 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, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"Subsidiary) not to, directly or indirectly, (i) solicit, initiate or encourage (including by means way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal of offer (including, without limitation, any proposal or offer with respect toto its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or (ii) enter into or maintain or continue discussions or negotiate negotiations 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 to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse 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 than with Parent representative retained by the Company or an affiliate any of Parentits Subsidiaries, to take any such action. The Shareholder Company shall notify Purchaser as promptly as practicable (but and in any event within 24 hoursone (1) notify Parent Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contactcontact with any Person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, representatives and agents to, immediately shall cease and cause to be terminated all existing any discussions or negotiations with any parties that may have been conducted heretofore with respect to a Competing Transaction. Notwithstanding The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party 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 and, if requested by Purchaser and at Purchaser’s expenses, to enforce such Person’s obligation to do so. The Company shall not take any action to make the provisions of Section 203 of the DGCL inapplicable to any transaction other than the Transactions.
(b) Notwithstanding anything to the contrary in this Section 3.37.05, the Board may furnish information to, and enter into discussions with, a Shareholder 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 having consulted with a financial advisor of nationally recognized reputation, which may include Xxxxxxxxx & Company, Inc. or an Affiliate or division thereof), that such proposal or offer constitutes a Superior Proposal, or in the absence of a Superior Proposal, determined, in its good faith judgment after consultation with independent legal counsel, that the furnishing of such information or entering into discussions is also required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (ii) provided written notice to Purchaser of its intent to furnish information or enter into discussions with such Person at least two Business Days prior to taking any such action, and (iii) obtained from such Person an executed confidentiality agreement on customary terms (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).
(c) Except as set forth in this Section 7.05(c), neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a director manner adverse to Purchaser, the approval or officer recommendation by the Board or any such committee of any Transaction Agreement or any of the Transactions (a “Change in the Company 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 Board determines, in its good faith judgment prior to the Swap Closing and after consultation with independent legal counsel, that it is required to make a Change in the Company Recommendation to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, the Board may take any action make a Change in his capacity as such the Company Recommendation, but only (including complying with i) after providing written notice to Purchaser (a “Notice of Change in Recommendation”) advising Purchaser that the Board intends to effect a Change in the Company Recommendation and the manner in which it intends (or exercising his may intend) to do so, and (ii) if Purchaser does not, within five (5) Business Days of Purchaser’s receipt of the Notice of Change in Recommendation, make an offer that the Board determines, in its good faith judgment that it is no longer required by its fiduciary duties as to make a member of Change in the Board of Directors of the Company) as is not limited by the terms of the Merger AgreementCompany Recommendation.
Appears in 2 contracts
Samples: Investment Agreement (Transmeridian Exploration Inc), Investment Agreement (Transmeridian Exploration Inc)
No Solicitation of Transactions. The Shareholder, subject (a) Subject to the last sentence provisions of this Section 3.37.04(c) and (d), agrees that from neither of the date Company or any Subsidiary shall, nor shall either of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it them authorize or permit any of its the directors, officers or employees or officers, employees, agents, advisors and other retained representatives (including any investment banker, financial advisor, attorney, accountant attorney or other representative retained by it accountant) of the Company or any of its Subsidiaries (collectivelySubsidiary, the "REPRESENTATIVES") to, directly or indirectly, (i) solicit, initiate or encourage (including by means way of furnishing nonpublic information), or take any other action to facilitate, knowingly facilitate any inquiries or the making of any proposal or offer with respect tothat constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction Transaction, (as defined in the Merger Agreement), or ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to to, approve, endorse or endorse recommend any Competing TransactionTransaction or enter into any letter of intent or other contract, agreement, commitment or understanding contemplating or otherwise relating to any Competing Transaction (other than an Acceptable Confidentiality Agreement as contemplated by Section 7.04(c)); provided, however, that nothing in this Section 7.04 shall preclude the Company or its representatives from contacting any person for the sole purpose of complying with Parent or an affiliate the penultimate sentence of Parentthis Section 7.04(a). The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeCompany shall, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other retained representatives to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder (i) immediately shall cease and cause to be terminated all existing any discussions or negotiations with any parties that may have been conducted heretofore with respect to a Competing TransactionTransaction and (ii) cause any physical or virtual data room (including, for the avoidance of doubt, the Data Room) no longer to be accessible to or by any person other than Parent and its representatives, affiliates and advisors and the Company and its representatives, affiliates and advisors. Notwithstanding The Company shall not release any third person from or waive any provision of, any confidentiality or standstill agreement to which it or any of its Subsidiaries is a party unless the provisions Board determines in good faith after consultation with outside legal counsel that it would be inconsistent with its fiduciary duties to not provide such release or waiver.
(b) The Company shall notify Parent promptly orally and then promptly in writing (and in no event later than forty-eight (48) hours) after it or any of this Section 3.3its Subsidiaries has received any proposal, inquiry or offer (or any amendment thereto) that constitutes, or is reasonably likely to lead to, a Shareholder who is also Competing Transaction, any request for discussions or negotiations in connection with a director Competing Transaction or officer a potential Competing Transaction or any request for access to the properties or books and records of the Company may take or any action in his capacity as such of its Subsidiaries. Such notice shall include a description of the terms and conditions of, and the identity of the person making any proposal, inquiry, offer or request (including complying any amendments thereto) regarding a Competing Transaction.
(c) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the affirmative vote of the holders of a majority of the outstanding Shares in favor of adoption of this Agreement (the “Company Required Vote”), the Company may furnish information to, including nonpublic information, and enter into discussions or negotiations with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, if the Board has (i) determined, in good faith after consultation with its financial advisor and outside legal counsel, that such Competing Transaction is, or exercising his is reasonably likely to lead to, a Superior Proposal, (ii) determined, in good faith after consultation with outside legal counsel, that, in light of such determination that such Competing Transaction is, or is reasonably likely to lead to, a Superior Proposal, the failure to furnish such information or enter into such discussions or negotiations would be inconsistent with its fiduciary duties as obligations under applicable Law, (iii) provided written notice to Parent of its determinations described in clauses (i) and (ii) above and provided the required information pursuant to Section 7.04(b), and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement, including a member standstill provision substantially similar to the standstill provision included in the Confidentiality Agreement (it being understood that such confidentiality agreement or any other related agreement shall not include any provision having the effect of prohibiting the Company from satisfying its material obligations under this Agreement) (an “Acceptable Confidentiality Agreement”).
(d) The Company may, prior to obtaining the Company Required Vote, (i) withdraw, amend, modify or qualify, in any manner adverse to Parent, the recommendation of the Board of Directors this Agreement and the Merger in favor of a Superior Proposal (a “Change in Board Recommendation”); and (ii) accept, approve, endorse or recommend a Superior Proposal, but in each case, if and only to the extent that:
(i) The Company shall have received an unsolicited bona fide written Competing Transaction from such person (in circumstances not involving any breach of this Section 7.04);
(ii) The Board shall have determined, in good faith after consultation with its financial advisor and outside legal counsel, that such Competing Transaction constitutes a Superior Proposal;
(iii) The Board shall have determined, in good faith after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations under applicable Law;
(iv) The Company shall have provided written notice to Parent at least three (3) Business Days prior to making such Change in Board Recommendation or publicly announcing that it may make such Change in Board Recommendation which notice shall state expressly (A) that the Company has received a Superior Proposal, (B) a description of the Companyfinal terms and conditions of, and the identity of the person or persons making the Superior Proposal and a copy of the latest draft of the agreement with respect to such Superior Proposal (and any amendments thereto) as is not limited by and (C) that the Board intends to effect a Change in Board Recommendation (and the Board shall keep Parent reasonably apprised of any developments with respect to such Superior Proposal, including any changes in any material terms during such period);
(v) The Company shall have provided Parent with a reasonable opportunity to make such changes or adjustments in the terms and conditions of this Agreement during such three (3) Business Day period, and negotiate in good faith with respect thereto, as would enable the Board to proceed with its recommendation to the Company’s stockholders in favor of adoption of this Agreement without making a Change in Board Recommendation; and
(vi) The Board shall have determined in good faith (A) after consultation with its financial advisor and outside legal counsel, that the Superior Proposal continues to be a Superior Proposal as compared to the terms and conditions of the Merger Agreementand this Agreement as proposed to be changed or adjusted by Parent and (B) after consultation with outside legal counsel, that the failure to effect a Change in Board Recommendation would be inconsistent with its fiduciary obligations under applicable Law, and has given Parent written notice of such determination promptly upon such determination. Notwithstanding the foregoing, the Company shall not be entitled to enter into any definitive agreement with respect to a Superior Proposal unless this Agreement has been, or concurrently is, terminated by its terms pursuant to Section 9.01(c)(i) or Section 9.01(d)(i) and the Company has paid, or concurrently with such termination pays, the Fee due to Parent pursuant to Section 9.03.
Appears in 2 contracts
Samples: Merger Agreement (Navteq Corp), Merger Agreement (Nokia Corp)
No Solicitation of Transactions. The Shareholder, subject to During the last sentence of this Section 3.3, agrees that period from the date of this Agreement until through the Termination DateClosing Date or the earlier termination of this Agreement pursuant to Section 12.01, the Shareholder Contributors shall not, directly or indirectly, nor, in case and shall cause the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Company not to, directly or indirectly, solicitthrough any of their respective officers, initiate directors, managers, employees, Affiliates, investment bankers, attorneys, agents or other representatives or otherwise, initiate, solicit or encourage (including by means way of furnishing nonpublic information), any information or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreementassistance), or enter into or maintain participate in negotiations or continue discussions of any type, directly or negotiate indirectly, or enter into a confidentiality agreement, letter of intent or purchase agreement, merger agreement or other similar agreement with any person Person (other than Laredo and its representatives) with respect to: (a) the acquisition of any Capital Stock or entity in furtherance of such inquiries or to obtain a Competing Transactionother voting securities, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate a sale of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, all or any inquiry material asset or contactany substantial portion of the assets of the Company, constituting (b) a merger, consolidation, business combination, sale of any portion of the Capital Stock of the Company, (c) the liquidation, dissolution, reorganization or regarding similar extraordinary transaction with respect to the Company or (d) any other transaction the entry thereto or consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the close of the transaction contemplated by this Agreement or that could reasonably be expected to dilute materially the benefits to Laredo of the transaction contemplated by this Agreement (each a Competing Transaction is made“Material Transaction”). Contributors shall, and shall cause the Shareholder shall promptly inform Parent as to the material details of any such proposalCompany to, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cease and cause to be delivered terminated immediately all existing discussions or negotiations with any Persons conducted heretofore with respect to Parent a copy of such Material Transaction. Contributors will notify Laredo immediately if any Person makes a proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementforegoing.
Appears in 2 contracts
Samples: Contribution Agreement (Laredo Petroleum - Dallas, Inc.), Contribution Agreement (Laredo Petroleum Holdings, Inc.)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date of this Agreement until the Termination Date, the Shareholder (i) it and its officers and directors shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of (ii) its Subsidiaries and its Subsidiaries’ officers and directors shall not and (collectively, the "REPRESENTATIVES"iii) it shall cause its and its Subsidiaries’ other Representatives and RR Acquisition Holding LLC not to, directly or indirectly, (A) solicit, initiate or encourage (including by means of furnishing nonpublic information)knowingly encourage, or take any other action to knowingly facilitate, any inquiries or the making of any proposal that constitutes or offer is reasonably likely to lead to a Takeover Proposal (other than contacting or engaging in discussions with the Person making a Takeover Proposal or its representatives for the sole purpose of clarifying such Takeover Proposal) or (B) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any confidential information with respect to, to or that could reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of ParentTakeover Proposal. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeCompany shall, and the Shareholder shall promptly inform Parent as to the material details of any such proposalcause its Subsidiaries and direct its Representatives to, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all then existing discussions or and negotiations with any parties Person conducted heretofore theretofore with respect to a Competing Transactionany Takeover Proposal, and shall request the prompt return or destruction of all confidential information previously furnished in connection therewith. Notwithstanding the foregoing or anything else in this Agreement to the contrary, at any time prior to (i) in the event the Stockholders’ Written Consent is delivered to the Company in accordance with Section 5.4(a), 11:59 p.m. New York City time on the Written Consent End Date, or (ii) in the event the Stockholders’ Written Consent is not delivered to the Company in accordance with Section 5.4(a) and this Agreement is not terminated by Parent in accordance with Section 7.1(j), the date on which the Company Required Vote is obtained at the Company Stockholders’ Meeting (the “Stockholder Approval Date”), in response to an unsolicited bona fide written Takeover Proposal, if the Company has not breached its obligations under this Section 5.6(a) and if the Company Board of Directors determines (x) after consultation with, and taking into account the advice of, its financial advisor and outside counsel, that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (y) after consultation with, and taking into account the advice of, its outside counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, the Company may (and may authorize and permit its Subsidiaries, directors, officers, employees and Representatives to), subject to compliance with Section 5.6(c), (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing confidentiality provisions substantially similar to those set forth in the Confidentiality Agreement, provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the time it is provided to such Person, and (B) participate in discussions and negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal.
(b) Neither the Company Board of Directors nor any committee thereof shall (i)(A) withdraw (or modify in a manner adverse to Parent), or publicly propose to withdraw (or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by the Company Board of Directors or any such committee of this Agreement or the Merger (or take any other action or make any other public statement inconsistent with such recommendation) or (B) recommend the approval or adoption of, or approve or adopt, or publicly propose to recommend, approve or adopt, any Takeover Proposal (any action described in this clause (i) being referred to as 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 letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, other than any confidentiality agreement referred to in Section 3.35.6(a). Notwithstanding the foregoing or anything else in this Agreement to the contrary, at any time prior to 11:59 p.m. New York City time on the Written Consent End Date (in the event the Stockholders’ Written Consent is delivered to the Company in accordance with Section 5.4(a)) or the Stockholder Approval Date (in the event the Stockholders’ Written Consent is not delivered to the Company in accordance with Section 5.4(a) and this Agreement is not terminated by Parent in accordance with Section 7.1(j)), as applicable, and subject to compliance with this Section 5.6(b) and Section 5.6(a), the Company Board of Directors may, if, after consultation with, and taking into account the advice of, its outside counsel, it determines that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, (1) make an Adverse Recommendation Change; provided, that in the event the Stockholders’ Written Consent is delivered to the Company in accordance with Section 5.4(a), the Company Board of Directors may not make an Adverse Recommendation Change after such Stockholders’ Written Consent is so delivered, or (2) cause or permit the Company to terminate this Agreement in order to enter into a Shareholder who definitive agreement regarding a Superior Proposal; provided, however, that the Company Board of Directors shall not make an Adverse Recommendation Change, and the Company may not terminate this Agreement pursuant to clause (2) above, until after the third Business Day following Parent’s receipt of written notice (a “Notice of Superior Proposal”) from the Company advising Parent that the Company Board of Directors intends to take such action and specifying the reasons therefor, including the material terms and conditions of (and documents relating to) any Superior Proposal (and the identity of the Person making such Superior Proposal) that is also the basis of the proposed action by such Company Board of Directors and a director or officer statement that the Company Board of Directors intends to terminate this Agreement pursuant to Section 7.1(d) and during such three Business Day period, if requested by Parent, the Company and its Representatives shall engage in good faith negotiations with Parent and its Representatives to, among other things, amend this Agreement and the Transaction Documents in such a manner that (i) any Takeover Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal and (ii) the failure of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors to make such Adverse Recommendation Change would no longer be inconsistent with its fiduciary duties under applicable Law (it being understood and agreed that (I) any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and a new three (3) Business Day period and (II) in determining whether to make an Adverse Recommendation Change or to cause or permit the Company to so terminate this Agreement, the Company Board of Directors shall take into account any changes to the financial or other terms of this Agreement and the other Transaction Documents proposed by Parent to the Company in response to a Notice of Superior Proposal or otherwise).
(c) In addition to the obligations of the CompanyCompany set forth in Section 5.6(a) and Section 5.6(b), the Company shall as is not limited by the terms soon as practicable advise Parent orally and in writing of the Merger receipt of any Takeover Proposal or any request for information or other inquiry that the Company reasonably believes could lead to any Takeover Proposal after the date of this Agreement, the material terms and conditions of any such Takeover Proposal or request for information or other inquiry and the identity of the Person making any such Takeover Proposal or request for information or other inquiry. The Company shall, subject to the fiduciary duties of the Company Board of Directors under applicable Law, keep Parent reasonably informed of any material developments with respect to any such Takeover Proposal or request for information or other inquiry (including any material changes thereto).
(d) Nothing contained in this Section 5.6 or elsewhere in this Agreement shall prohibit the Company from (i) complying with its disclosure obligations under U.S. federal or state Law, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any “stop-look-and-listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act or any similar 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 5.6(b) except, in each case, to the extent permitted by Section 5.6(b).
Appears in 2 contracts
Samples: Merger Agreement (Genesee & Wyoming Inc), Merger Agreement (Railamerica Inc /De)
No Solicitation of Transactions. The Shareholder, subject (a) At any time subsequent to the last sentence of this Section 3.3date of, agrees that from the date and prior to termination of this Agreement until the Termination Dateunder Article VI, the Shareholder Sellers and Companies shall not, directly or indirectly, northrough any officer, in case the Shareholder is a corporation director, agent or other entityemployee of, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it by, the Sellers, Companies or any of its Subsidiaries their respective Affiliates (collectively, the "REPRESENTATIVES"each a “Seller Representative”) to, directly or indirectly, (i) solicit, initiate initiate, seek or encourage (including by means way of furnishing nonpublic information), information or assistance) or take any other action to facilitate, facilitate any inquiries or the making submission of any proposal which constitutes or offer with respect to, or that may reasonably may be expected to lead to to, an Acquisition Proposal from any Person other than the Purchaser (a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement“Third Party”), or enter into or maintain or continue (ii) engage in any discussions or negotiate with any person negotiations relating thereto or entity in furtherance of such inquiries thereof or to obtain a Competing Transaction, accept any Acquisition Proposal. Any Seller or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder Company shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as immediately communicate to the Purchaser the material details terms of any such proposal, offer, inquiry or contact, including written proposal (and the identity of the party Person making any such proposal) which it may receive, offer, inquiry and such Seller or contact, and, if in writing, Company shall promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating theretoproposal to the Purchaser. The Shareholder immediately shall cease Sellers and cause Companies agree not to be terminated all existing release any Third Party from, or waive any provision of, any confidentiality agreement to which any Company is a party.
(b) Upon execution by the Sellers and Companies of this Agreement, each Seller Representative will terminate any solicitations, encouragement, activities, discussions or and negotiations with any parties Person other than the Purchaser conducted heretofore by the Sellers, Companies or any Seller Representative with respect to a Competing Transaction. Notwithstanding any Acquisition Proposal until the provisions earlier of Closing or termination of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger AgreementAgreement pursuant to Article VI.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Concho Resources Inc), Purchase Agreement (Concho Resources Inc)
No Solicitation of Transactions. The ShareholderSubject to Section 6.08 of the Merger Agreement, subject to Section 7 hereof and Section 8(o) hereof, none of the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall notShareholders shall, directly or indirectly, northrough any officer, in case the Shareholder is a corporation director, employee, legal or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorneyaccountant, accountant representative, agent or other representative retained by it otherwise, (a) initiate, solicit or knowingly facilitate or knowingly encourage an Acquisition Proposal or (b) engage with any third party in any discussions or negotiations concerning, or furnish any confidential information to any third party in connection with, an Acquisition Proposal, or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly inquiry or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal that would constitute an Acquisition Proposal if it were a bona fide written proposal or offer (except to notify such third party of the existence of the provisions of this Section 4). Each Shareholder shall immediately cease and cause to be terminated any existing discussions or negotiations with any Persons conducted heretofore with respect toto any Acquisition Proposal. From the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The each Shareholder shall promptly (promptly, but in any event within 24 twenty-four (24) hours) , notify Parent if following receipt by such Shareholder of any proposal Acquisition Proposal, the material terms thereof and material conditions thereto and the identity of the Person making such Acquisition Proposal, as well as any material modification of or offeramendment thereto, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposalbona fide communication by any Person that affirmatively states that it relates to, offeror could lead to, inquiry or contactthat any party is contemplating, a potential Acquisition Proposal, including the identity of the party Person making any or on whose behalf such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy communication was made and the other material facts of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementcommunication.
Appears in 2 contracts
Samples: Shareholders Agreement (Intelligroup Inc), Shareholders Agreement (Intelligroup Inc)
No Solicitation of Transactions. The ShareholderCompany, subject to the last sentence of this Section 3.3its affiliates and their respective officers, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or employees, representatives and agents shall immediately cease any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations negotiations, if any, with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions any acquisition or exchange of this Section 3.3, a Shareholder who is also a director all or officer any material portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any business combination with the Company or any of its subsidiaries. The Company may, directly or indirectly, 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 encouraged, solicited or initiated 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, pursuant to appropriate confidentiality agreements, and may take participate in discussions and negotiate with such entity or group concerning any action in his capacity as such merger, sale of assets, sale of shares of capital stock or similar transaction (including complying with an exchange of stock or exercising his fiduciary duties assets) involving the Company or any subsidiary or division of the Company, if such entity or group has submitted a written proposal to the Board relating to any such transaction and the Special Committee Members, as a member result of such proposal, by a majority vote determine, in their good faith judgment, that based on the advice of independent outside legal counsel to the Special Committee Members, failing to take such action would constitute a breach of the Board's fiduciary duty under applicable law. The Board shall provide a copy of any such written proposal to Parent immediately after receipt thereof, shall notify Parent immediately if any such proposal is made and 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 the other transactions contemplated by this Agreement. Except as set forth in this Section 6.5, neither the Company or any of its affiliates, nor any of its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Purchaser, any affiliate or associate of Parent and Purchaser or any designees of Parent or Purchaser) concerning any merger, sale of all or any material portion of the assets, the sale of more than 10% of the outstanding shares of capital stock of the Company or any of its subsidiaries or similar transactions (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company) as is ; provided, however, that nothing herein shall prevent the Board from taking, and disclosing to 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; provided, further, that the Board shall not limited by recommend that the terms stockholders of the Merger AgreementCompany tender their Shares in connection with any such tender offer unless the Board by a majority vote determines in its good faith judgment, based on the advice of independent outside legal counsel to the Company, that failing to take such action would constitute a breach of the Board's fiduciary duty under applicable law. The Company agrees not to release any third party from, or waive any provisions of, (i) any standstill agreement to which the Company is a party (other than for the limited purpose of discussions and negotiations permitted by this Section 6.5) and (ii) any confidentiality agreement to which the Company is a party.
Appears in 2 contracts
Samples: Merger Agreement (Microdyne Corp), Merger Agreement (L 3 Communications Holdings Inc)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of (a) Unless and until this Agreement until is terminated in accordance with its terms, neither the Termination Date, the Shareholder shall notCompany nor its Subsidiary shall, directly or indirectly, northrough any officer, in case the Shareholder is a corporation trustee director, agent or other entityotherwise, shall nor will it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of acting on its Subsidiaries behalf to (collectivelyA) initiate, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate solicit or encourage (including by means way of furnishing nonpublic informationnon-public information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect tothat constitutes, or that may reasonably may be expected to lead to, (i) any acquisition in any manner, directly or indirectly (including through any option, right to a proposal acquire or offer for, any Competing Transaction (as defined in the Merger Agreementother beneficial ownership), of 10% or more of any class of equity securities of the Company, or assets representing a material portion of the assets of the Company or the Property, other than by Parent or its Subsidiaries, (ii) any merger, consolidation, sale of assets, share exchange, recapitalization, other business combination, liquidation, or other action out of the ordinary course of business of the Company, other than with the Parent or its Subsidiaries, (iii) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing (any of the foregoing, a "COMPETING PROPOSAL"), (iv) the withdrawal by the Company's Board of Trustees of its Company Board Recommendation or (B) enter into into, participate or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or (C) agree to or endorse any Competing Transaction; PROVIDED, other than THAT, prior to the date of the Company Stockholders Meeting, the Company's Board of Trustees or the Special Committee (and the officers, trustees, agents, and financial advisors of the Company acting at the direction of the Company's Board of Trustees or the Special Committee) may furnish information to, or enter into discussions or negotiations with, any person that previously has made an unsolicited bona fide written Competing Proposal if, and only to the extent that (I) the Company's Board of Trustees, after consultation with and having considered the advise of independent outside legal counsel, determines in good faith, that (i) such Competing Proposal would, if consummated, constitute a Superior Proposal (as hereinafter defined), and (ii) the failure to engage in such negotiations or discussions or provide such information would constitute a breach of the duties of the Board of Trustees of the Company under the Company's declaration of trust or applicable law, (II) prior to taking such action, the Company (i) provides reasonable notice to Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hoursno later than 48 hours prior to taking such action) notify Parent if any proposal to the effect that it is taking such action and (ii) receives from such person an executed confidentiality agreement in reasonably customary form, and (III) the Company notifies the Acquiring Entities as promptly as practicable of all of the relevant details relating to all inquiries and proposals which the Company or offer, its Subsidiary or any inquiry such officer, director, employee, investment banker, financial advisor, attorney, accountant or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as other representative may receive relating to the material details any of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contactmatters, and, if such inquiry or proposal is in writing, the Company shall deliver to the Acquiring Entities a copy of such inquiry or proposal. In furtherance of and not in limitation of the preceding, the Company shall provide the Parent with a copy of any Competing Proposal or amendments or supplements thereto, and promptly deliver inform Parent of the status of any discussions or cause negotiations with such a third party, and any material changes to be delivered to the terms and conditions of such Competing Proposal, and shall promptly give Parent a copy of any information delivered to such proposalperson that has not previously been reviewed by Parent. Immediately after the execution and delivery of this Agreement, offerthe Company will, inquiry or contact and any will cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other written material reasonably relating thereto. The Shareholder immediately shall agents to, cease and cause to be terminated all terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Competing Proposal. Nothing contained in this Section shall prohibit the Company's Board of Trustees from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer.
(b) Except as set forth in this Section 5.4(b), the Company Board of Trustees will not approve or recommend or permit the Company to enter into any agreement with respect to any Competing Proposal (other than a confidentiality agreement as described in Section 5.4(a)) made by any person other than Parent or Merger Sub or, except as set forth in this Section 5.4(b) or in Section 5.1(c), make a Change in the Company Board Recommendation. Notwithstanding the foregoing and subject thereto, if the Company Board of Trustees, after having considered the advice of independent outside legal counsel, determines in good faith that failing to take such action would constitute a breach of the obligations of the Company Board of Trustees under the Company's declaration of trust or applicable law, the Company Board of Trustees may, prior to the date of the Company Stockholders Meeting, approve or recommend a Competing Transaction. Notwithstanding Proposal (or amendment or supplement thereto) or cause the Company to enter into an agreement with respect thereto or make a Change in the Company Board Recommendation, but in each case only if (i) the Company provides written notice to Parent (a "NOTICE OF SUPERIOR PROPOSAL"), which notice must be received by Parent at least five Business Days (exclusive of the day of receipt by Parent of the Notice of Superior Proposal) prior to the time it intends to cause the Company to enter into such an agreement, advising Parent in writing that the Company Board of Trustees has received a Competing Proposal (or amendment or supplement thereto) which it believes constitutes a Superior Proposal and which it intends to accept and, with respect to which, enter into a definitive agreement, subject to the provisions of this Section 3.35.4(b), providing a Shareholder who is also a director copy of any written offer or officer proposal describing the Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal, (ii) as of the end of such five Business Day period referenced above, Parent shall have failed to notify the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by writing that it has determined to revise the terms of the Merger to provide that the Merger Consideration will be equal to or greater than the consideration to be paid to the Company stockholders pursuant to the Superior Proposal, and (iii) the Company terminates this Agreement in accordance with the requirements of Section 7.1(h) within 48 hours after the lapse of the five-day period referenced above and immediately thereafter enters into an agreement with respect to such Superior Proposal. For purposes of this Agreement, a "SUPERIOR PROPOSAL" means any bona fide Competing Proposal not directly or indirectly initiated, solicited, encouraged or facilitated by the Company after the date of this Agreement in contravention of the provisions hereof which the Company Board of Trustees or the Special Committee determines in good faith judgment (based on the advice of the Financial Advisor or another investment banker of nationally recognized reputation), taking into account all legal, financial, regulatory and other aspects of the proposal, including the tax consequences of such Competing Proposal to the Company and its shareholders, and the person making the proposal, (i) would, if consummated, result in a transaction that is more favorable to the Company's shareholders (in their capacity as shareholders), from a financial point of view, than the Merger and (ii) is reasonably capable of being completed; PROVIDED, HOWEVER, that for purposes of this definition, the term Competing Proposal shall have the meaning assigned to such term in Section 5.4(a) except that the reference to 10 percent in the definition of "Competing Proposal" shall be deemed to be a reference to 100 percent.
Appears in 2 contracts
Samples: Merger Agreement (Kimco Realty Corp), Merger Agreement (Atlantic Realty Trust)
No Solicitation of Transactions. The Shareholder, subject Prior to the last sentence earlier of this Section 3.3, agrees that from (A) the date Closing Date or (B) the termination of this Agreement until in accordance with the Termination Dateprovisions of Section 14.1, the Shareholder shall notneither Seller, directly or indirectly, northrough any director, in case the Shareholder is a corporation or other entityofficer, shall it authorize or permit any of its directorsemployee, officers or employees or any investment banker, financial advisor, attorney, accountant or other agent or representative retained by it or any of its Subsidiaries (collectivelySeller, the "REPRESENTATIVES") tonor Parent, directly or indirectlyindirectly through any affiliate of Parent or otherwise, shall solicit, initiate or encourage (including by means the submission of furnishing nonpublic information)proposals or offers from any person relating to any acquisition or purchase of all or any portion of the Assets or Business of, or take any equity interest in, Seller, or any business combination with Seller and other than with Buyer or any of its Affiliates, participate in any negotiations regarding, or furnish to any other action to facilitate, person any inquiries or the making of any proposal or offer information with respect to, or that reasonably may be expected to lead to a proposal otherwise cooperate in any way with, or offer forassist or participate in, facilitate or encourage, any Competing Transaction (as defined in effort or attempt by any other Person to do or seek any of the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with foregoing. Seller and Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeshall, and the Shareholder shall promptly inform Parent as to the material details cause any of any such proposaltheir respective representatives or affiliates to, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all or withdrawn any existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transactionany of the foregoing (other than in respect of the transaction contemplated hereby). In addition, prior to the earlier of (A) the Closing Date or (B) termination of this Agreement in accordance with the provisions of Section 14.1, Parent agrees not to, directly or indirectly, through any affiliate of Parent or otherwise, reinstate or make any new offer to purchase shares of Seller or any other type of acquisition of all, or substantially all, of the capital stock or assets of Seller, whether by merger or other type of business combination with Seller. Seller and the Parent shall promptly notify Buyer if any such proposal or offer, or any inquiry or contact with any person with respect thereto, is made and shall, in any such notice to Buyer, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal or offer. Notwithstanding the provisions of this Section 3.3foregoing, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of Seller shall be permitted in response to an unsolicited bona fide written Acquisition Proposal from any Person received after the Companydate of this Agreement to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person received after the date of this Agreement, if and only to the extent that, (i) the Board of Directors of Seller shall have concluded in good faith that such Acquisition Proposal would, if consummated, constitute a Superior Proposal, (ii) the Board of Directors of Seller shall have determined in good faith after consultation with outside legal counsel that such action is necessary for such Board of Directors to be deemed to have acted in a manner consistent with its fiduciary duties under the DGCL and (iii) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors shall have received from such Person an executed confidentiality agreement containing terms and provisions no less favorable to Seller than those contained in the Confidentiality Agreement between Buyer and Parent, dated as is not limited by September 5, 2006 (the “Confidentiality Agreement”). Seller shall, within two (2) Business Days, notify Buyer in writing of any and all such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated or continued with, any of its representatives, which notice shall set forth the name(s) of such Person(s) and the material terms and conditions of any Acquisition Proposals. Seller shall keep Buyer fully and promptly informed of the Merger Agreementstatus (including amendments or proposed amendments) of any such Acquisition Proposal; provided, that, nothing in this Section 6.1(6) shall permit Seller to terminate this Agreement (except as specifically provided in Section 14.1 hereof).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Warnaco Group Inc /De/), Asset Purchase Agreement (Iconix Brand Group, Inc.)
No Solicitation of Transactions. The Shareholder(a) Notwithstanding anything to the contrary in Section 5.1, and subject to Section 5.3(b), from and after the last sentence date hereof until the Effective Time or, if earlier, the termination of this Section 3.3Agreement in accordance with Article 7, agrees the Company shall not, and shall cause the Company Subsidiaries and the Company Representatives not to, directly or indirectly: (i) solicit, initiate, seek or knowingly encourage, induce or facilitate or take any action to solicit, initiate or seek or knowingly encourage, induce or facilitate any inquiry, expression of interest, proposal or offer that from constitutes, relates to or could reasonably be expected to lead to an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, or that could reasonably be expected to lead to, any Acquisition Proposal with any Person other than Parent or the Purchaser, (iii) furnish to any Person other than Parent or the Purchaser any non-public information in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal or (iv) enter into any agreement, letter of intent or Contract providing for the consummation of any or otherwise relating to any Acquisition Proposal or any proposal, inquiry or offer that could reasonably be expected to lead to an Acquisition Proposal. The Company shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted on or prior to the date of this Agreement with respect to any Acquisition Proposal, and shall promptly after the date of this Agreement instruct each Person that has in the twelve months prior to the date of this Agreement executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of the Company to promptly return or destroy in accordance with the terms of such confidentiality agreement all information, documents and materials relating to the Acquisition Proposal or to the Company or any Company Subsidiary and their respective businesses previously furnished by or on behalf of the Company or any Company Subsidiary or any Company Representatives.
(b) From the date of this Agreement until the Termination Dateearlier of the Acceptance Time or the termination of this Agreement in accordance with its terms, the Shareholder Company shall notpromptly (and in any event within three Business Days) provide Parent with: (i) an oral and a written description of any inquiry, directly expression of interest, proposal or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage offer relating to an Acquisition Proposal (including by means of furnishing nonpublic informationany modification thereto), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or request for information that would reasonably may be expected to lead to a proposal an Acquisition Proposal, that is received by the Company or offer for, any Competing Transaction Company Subsidiary or any Representative of the Company or any Company Subsidiary from any Person (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate the Purchaser) including in such description the identity of Parentthe Person from which such inquiry, expression of interest, proposal, offer or request for information was received (the “Other Interested Party”); and (ii) a copy of each material written communication and a summary of each material oral communication transmitted on behalf of the Other Interested Party or any of its Representatives to the Company or any Company Subsidiary or any of their Representatives or transmitted on behalf of the Company or any Company Subsidiary or any Representative of the Company or any Company Subsidiary to the Other Interested Party or any of its Representatives. The Shareholder Without limiting the foregoing, the Company shall promptly (but and in any event within 24 hoursthree Business Days) notify Parent orally and in writing if the Company determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.3(c).
(c) Notwithstanding anything to the contrary contained in Section 5.3(a), if at any proposal time following the date hereof and prior to the Acceptance Time (i) the Company has received a bona fide written Acquisition Proposal from a third party, (ii) the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes or offeris reasonably likely to lead to a Superior Proposal and (iii) after consultation with its outside counsel, the Company Board determines in good faith that the failure to take such actions would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, then the Company may take the following actions: (A) furnish information with respect to the Company and any Company Subsidiary 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 not, and shall not allow any Company Subsidiary or any inquiry or contactCompany Representative to, constituting or regarding a Competing Transaction is madedisclose any information to such Person without first entering into an Acceptable Confidentiality Agreement, and the Shareholder (y) shall promptly inform provide to Parent any information concerning the Company or any Company Subsidiary provided to such other Person which was not previously provided to Parent.
(d) Neither the Company Board nor any committee thereof shall (i) withhold, withdraw or qualify (or modify in a manner adverse to Parent) the approval, recommendation or declaration of advisability by the Company Board or any such committee of this Agreement, the Merger or any of the other transactions contemplated hereby, (ii) adopt, approve, recommend or otherwise declare advisable the adoption of any Acquisition Proposal, (iii) submit any Acquisition Proposal or any matter related thereto to the vote of the stockholders of the Company or (iv) resolve or agree to take any such actions (each such action set forth in this Section 5.3(d) being referred to as a “Change of Board Recommendation”).
(e) Notwithstanding anything to the contrary contained herein, the Company Board may, at any time prior to the Acceptance Time, make a Change of Board Recommendation for a reason unrelated to an Acquisition Proposal (it being understood and agreed that any Change of Board Recommendation proposed to be made in relation to an Acquisition Proposal may only be made pursuant to and in accordance with the terms of Section 5.3(f)) if the Company Board has determined in good faith, after consultation with its outside legal counsel, that, in light of facts, events and/or circumstances that have developed since the Agreement Date and prior to the Acceptance Time and of which the Company Board did not, as of the date hereof, have knowledge and that were not reasonably foreseeable by the Company Board as of or immediately prior to the date hereof after due inquiry of the Company’s executive management team (an “Intervening Event”) and taking into account the results of any negotiations with Parent as contemplated by subsection ii. below and any offer from Parent contemplated by subsection iii below, the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law (it being agreed that, for the avoidance of doubt, the approval by the FDA of NDA Number 202-363 (or any resubmission of such NDA or any other NDA relating to the Levadex Product) shall be deemed not to constitute an Intervening Event); provided, however, that the Company Board may not withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent pursuant to the foregoing unless:
i. the Company shall have provided prior written notice to Parent, at least three Business Days in advance (the “Intervening Event Notice Period”) of the Company’s intention to make a Change of Board Recommendation (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Change of Board Recommendation or otherwise give rise to a Triggering Event), which notice shall specify the Company Board reason for proposing to effect such Change of Board Recommendation pursuant to this Section 5.3(e);
ii. prior to effecting such Change of Board Recommendation, the Company shall, and shall cause the Company Representatives to, during the Intervening Event 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 in such a manner that would obviate the need for the Company Board to effect such Change of Board Recommendation; and
iii. Parent shall not have, within the aforementioned three Business Day period, made a written, binding and irrevocable (through the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Company Board has in good faith determined (after consultation with its outside legal counsel and its financial advisor) would obviate the need for the Company Board to effect such Change of Board Recommendation.
(f) Notwithstanding anything to the contrary contained in this Article 5, if the Company receives an Acquisition Proposal that the Company Board determines 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 and conditions of this Agreement that have been delivered to the Company by Parent in writing during the Notice Period provided pursuant to this Section 5.3(f), that are binding and have been irrevocably committed to by Parent in writing, and provided that such Acquisition Proposal did not result from or arise in connection with a material details breach by the Company or any of its Representatives of this Section 5.3, the Company Board may at any time prior to the Acceptance Time, if the Company Board determines in good faith, after consultation with outside counsel, that the failure to take such proposalactions would be inconsistent with the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law, offertake the following action: (y) effect a Change of Board Recommendation with respect to such Superior Proposal or (z) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, inquiry however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (z), and any purported termination pursuant to the foregoing clause (z) shall be void and of no force or contacteffect, unless in advance of or concurrently with such termination the Company pays the Breakup Fee and otherwise complies with the provisions of Sections 7.1(f) and 7.2; and provided further that the Company Board may not withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent pursuant to the foregoing clause (y) or terminate this Agreement pursuant to the foregoing clause (z) unless:
i. the Company shall have provided prior written notice to Parent, at least three Business Days in advance (the “Notice Period”), of the Company’s intention to take such action with respect to such Superior Proposal (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Change of Board Recommendation or otherwise give rise to a Triggering Event), which notice shall specify the material terms and conditions of such Superior Proposal, (including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent Superior Proposal) and shall have contemporaneously provided a copy of the relevant proposed transaction agreements with the party making such proposalSuperior Proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore including the definitive agreement with respect to such Superior Proposal; and
ii. prior to effecting such Change of Board Recommendation or terminating this Agreement to enter into a Competing Transactiondefinitive agreement with respect to such Superior Proposal, the 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 Acquisition Proposal ceases to constitute a Superior Proposal. Notwithstanding 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 5.3(e) with respect to such new written notice (provided that the Notice Period for any subsequent notice shall be shortened from three Business Days to one Business Day). The Company agrees that any violation of the restrictions set forth in this Section 5.3 by any of the Company Representatives shall be deemed to be a material breach of this Agreement (including this Section 5.3) by the Company.
(g) Nothing contained in this Section 5.3 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) or complying with the provisions of this Section 3.3, a Shareholder who is also a director Rule 14d-9 promulgated under the Exchange Act or officer (ii) making any disclosure to the stockholders of the Company may take any action that the Company Board determines to make in his capacity as such good faith (including complying after consultation with or exercising his its outside legal counsel) in order to fulfill its fiduciary duties as a member under, or in order to otherwise comply with, Applicable Law; provided, however, that the content of the Board of Directors of the Company) as is not limited any such disclosure shall be governed by the terms of this Agreement; and provided, further, that any such disclosure (other than 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 of Board Recommendation unless the Company Board expressly reaffirms its recommendation to its stockholders in favor of the Offer and Merger Agreementin such disclosure.
(h) The Company agrees that any violation of the restrictions set forth in this Section 5.3 by any Company Representative, whether or not such Person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Agreement by the Company.
(i) The Company shall not, and shall cause the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to comply with any of the terms of this Section 5.3, and represents that neither it nor any of its Subsidiaries is a party to any such agreement.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (MAP Pharmaceuticals, Inc.)
No Solicitation of Transactions. The Shareholder(a) None of the Company or any Company Subsidiary shall, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder or shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directorsofficers, officers directors or employees or any investment banker, financial advisor, attorney, accountant or other representative or agent retained by it the Company or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Company Subsidiary to, directly initiate or indirectly, solicit, initiate solicit or encourage (including by means way of furnishing nonpublic non-public information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect tothat constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Third Party Transaction (as such term is defined below in the Merger Agreementthis Section 5.5), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Third Party Transaction; provided, or agree to or endorse any Competing Transactionhowever, other than with Parent or an affiliate that, commencing 120 days after the date of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offerthis Agreement and continuing until the Closing Date, or any inquiry or contact, constituting or regarding a Competing Transaction is madethe Company may, and the Shareholder shall promptly inform Parent as to the material details of any such proposalmay authorize and permit its officers, offerdirectors, inquiry employees or contactagents to, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver furnish or cause to be delivered furnished confidential or other non-public information and may participate in such discussions and negotiations if the Company's Board of Directors (A) is advised in writing by independent outside counsel to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action that the failure to furnish such confidential or other non-public information or to participate in his capacity as such (including complying with or exercising his fiduciary duties as a member discussions and negotiations would cause the members of the Board of Directors to breach such fiduciary duties as are applicable under Ohio law and (B) concludes based on such advice that the failure to furnish such confidential or other non-public information or to participate in such discussions and negotiations would cause the members of such Board of Directors to breach such fiduciary duties as are applicable under Ohio law; provided, further, however, that at least 72 hours prior to furnishing any such confidential or other non-public information, the Company shall furnish copies of all such information to Acquiror, together with any inquiries, proposals, bids, offers or other documentation received by the Company from the party or parties to whom such confidential or other non-public information is to be furnished by the Company and information as to the identity of such party or parties. Except in circumstances in which the immediately preceding proviso applies, in which event such proviso shall govern, the Company shall immediately notify Acquiror orally and in writing of all relevant details relating to all proposals which it or any Company Subsidiary or any such officer, director, employee, investment banker, financial advisor, attorney, accountant or other representative may receive relating to any of such matters and, if such inquiry or proposal is in writing, the Company shall forthwith deliver to Acquiror a copy of such inquiry or proposal.
(b) For purposes of this Agreement, "Third Party Transaction" shall mean any of the following other than transactions between Acquiror, Merger Sub and the Company contemplated in this Agreement: (i) any merger, consolidation, share exchange, business combination, recapitalization or other similar transaction involving the Company or any of its subsidiaries; (ii) any sale, exchange, transfer or other disposition of 20% or more of the assets of the Company and its subsidiaries, taken as a whole, in a single transaction or series of transactions; (iii) any sale of or tender offer or exchange offer for 20% or more of the outstanding shares of capital stock of the Company or the filing of a registration statement under the Securities Act in connection therewith; (iv) any person acquiring beneficial ownership or the right to acquire beneficial ownership of, or any "group" (as such term is defined under Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) having been formed for the purpose of effecting a Third Party Transaction referred to in Sections 5.5(b)(i), (ii) or (iii) which beneficially owns or has the right to acquire beneficial ownership of, 20% or more of the then outstanding shares of capital stock of the Company; or (v) as is not limited any public announcement by the terms such party of a proposal, plan or intention to do any of the Merger Agreementforegoing or any agreement to engage in any of the foregoing with respect to the Company or any communication to the Company of any proposal, plan or intention to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Karrington Health Inc), Merger Agreement (Sunrise Assisted Living Inc)
No Solicitation of Transactions. The Shareholder(a) Except as expressly permitted by this Section 6.04, subject the Company shall, and shall cause each of its Subsidiaries and its and their respective officers, directors and employees to, and shall direct and use reasonable best efforts to cause any agents, financial advisors, investment bankers, attorneys, accountants, auditors and other representatives (collectively, “Representatives”) of the Company or any of its Subsidiaries to: (i) immediately cease any ongoing solicitation, knowing encouragement, discussions or negotiations with any Person that may be ongoing with respect to a Competing Transaction, and promptly (A) instruct (to the last sentence extent it has contractual authority to do so and has not already done so prior to the date of this Section 3.3Agreement) or otherwise request, agrees any Person that from has executed a confidentiality or nondisclosure agreement within the 36-month period prior to the date of this Agreement in connection with any actual or potential Competing Transaction to return or destroy all such information or documents or material incorporating confidential information in the possession of such Person or its Representatives and (B) cause any physical or virtual data room to no longer be accessible to or by any Person other than Parent or its Affiliates and Representatives; and (ii) until the Termination DateEffective Time or, if earlier, the Shareholder shall termination of this Agreement in accordance with Section 8.01, not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"A) to, directly or indirectly, solicit, initiate or knowingly facilitate or knowingly encourage (including by means way of furnishing nonpublic information), or take any other action to facilitate, ) any inquiries regarding, or the making of any proposal or offer with respect tothat constitutes, or that could reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, (B) engage in, continue or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but otherwise participate in any event within 24 hours) notify Parent if any proposal discussions or offernegotiations regarding, or furnish to any inquiry other Person any nonpublic information in connection with or contactfor the purpose of encouraging or facilitating, constituting or regarding a Competing Transaction is made(other than, solely in response to an unsolicited inquiry, to refer the inquiring Person to this Section 6.04 and the Shareholder shall promptly inform Parent as to the material details limit its conversation or other communication exclusively to such referral), or (C) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of any such proposalintent or similar document, offeragreement, inquiry commitment, or contactagreement in principle (whether written or oral, including the identity of the party making any such proposal, offer, inquiry binding or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore nonbinding) with respect to a Competing Transaction. Except to the extent necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 6.04 (and in such case only in accordance with the terms hereof), (i) the Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, (x) any standstill provision in any agreement to which the Company or any of its Subsidiaries is a party or (y) any confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party other than, with respect to this clause (y), any waiver, amendment, modification or permission under a confidentiality provision that does not, and would not be reasonably likely to, facilitate, encourage or relate in any way to a Competing Transaction or a potential Competing Transaction (ii) the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement, and (iii) the Company shall, and shall cause its Subsidiaries to, immediately take all steps within their power necessary to terminate any waiver that may have been heretofore granted, to any Person other than Parent or any of Parent’s Affiliates or Representatives, under any such provisions.
(b) Notwithstanding anything to the contrary contained in Section 6.04(a), if at any time from and after the date of this Agreement and prior to obtaining the Company Shareholder Approval, the Company, directly or indirectly receives a bona fide, written Competing Transaction from any Person that did not result from a breach of this Section 6.04, and if the Company Board determines in good faith, after consultation with its outside financial advisor and outside legal counsel, that such Competing Transaction constitutes or could reasonably be expected to lead to a Superior Proposal, then the Company may, directly or indirectly, (i) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including nonpublic information) with respect to the Company and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of the Company and its Subsidiaries, to the Person who has made such Competing Transaction and its Representatives and potential Financing Sources; provided, however, that the Company shall substantially concurrently with the delivery to such Person provide to Parent any nonpublic information concerning the Company or any of its Subsidiaries that is provided or made available to such Person, its Representatives and/or its potential Financing Sources unless such nonpublic information has been previously provided or made available to Parent, and (ii) engage in or otherwise participate in discussions or negotiations with the Person making such Competing Transaction and its Representatives and potential Financing Sources regarding such Competing Transaction. For purposes of this Agreement, “Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less favorable to the Company in any material respect than those contained in the Confidentiality Agreement (including standstill restrictions), provided that such confidentiality agreement (x) shall not prohibit compliance by the Company with any of the provisions of this Section 3.36.04 and (y) may contain a less restrictive standstill restriction or no standstill restriction, a Shareholder who is also a director in which case the Confidentiality Agreement shall be deemed to be amended to contain only such less restrictive provision, or officer of the Company may take any action in his capacity to omit such provision, as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementapplicable.
Appears in 2 contracts
Samples: Merger Agreement (Stewart Enterprises Inc), Merger Agreement (Service Corporation International)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from From the date hereof until the earlier of (i) the Closing or (ii) termination of this Agreement until the Termination Datepursuant to Article VIII hereof, the Shareholder Seller, Parent and their Affiliates shall not, directly or indirectly, northrough any director, in case the Shareholder is a corporation or other entityofficer, shall it authorize or permit any of its directorsemployee, officers or employees or any investment banker, financial advisor, attorney, accountant or other agent or representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage or knowingly facilitate (including by means of furnishing nonpublic non-public information), or take any other action to facilitate, ) any inquiries or the making submission of proposals or offers from any proposal person relating to any acquisition or offer purchase of all or any portion of the ownership interest in Seller or International Subsidiary or of the Purchased Assets (other than in the ordinary course of business) or the Business, and, other than with Buyer or any of its Affiliates, participate in any discussions or negotiations regarding, or furnish to any other person any information with respect to, or that reasonably may be expected to lead to a proposal otherwise cooperate in any way with, or offer forassist or participate in, facilitate or encourage, any Competing Transaction (as defined in effort or attempt by any other person to do or seek any of the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with foregoing. Seller and Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeshall, and the Shareholder shall promptly inform Parent as to the material details cause any of any such proposaltheir representatives or Affiliates to, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all or withdrawn any existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transactionany of the foregoing (other than in respect of the transactions contemplated hereby). Notwithstanding From the provisions date hereof until the earlier of (i) the Closing or (ii) termination of this Section 3.3Agreement pursuant to Article VIII hereof, a Shareholder who the Seller shall, within two (2) business days, notify Buyer if any such proposal or offer, or any inquiry or contact with any person with respect thereto, is also a director or officer made and shall, in any such notice to Buyer, indicate in reasonable detail the identity of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by offeror and the terms and conditions of the Merger Agreementany proposal or offer.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Iconix Brand Group, Inc.)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall neither it authorize or permit nor any Subsidiary nor any of its 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, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"Subsidiary) not to, directly or indirectly, (i) solicit, initiate or encourage (including by means way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal of offer (including, without limitation, any proposal or offer with respect toto its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or (ii) enter into or maintain or continue discussions or negotiate negotiations 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 to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse 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 than with Parent representative retained by the Company or an affiliate any of Parentits Subsidiaries, to take any such action. The Shareholder Company shall notify Purchaser as promptly as practicable (but and in any event within 24 hoursone (1) notify Parent Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contactcontact with any Person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder Company shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, representatives and agents to, immediately shall cease and cause to be terminated all existing any discussions or negotiations with any parties that may have been conducted heretofore with respect to a Competing Transaction. Notwithstanding The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party 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 and, if requested by Purchaser and at Purchaser’s expenses, to enforce such Person’s obligation to do so. The Company shall not take any action to make the provisions of Section 203 of the DGCL inapplicable to any transaction other than the Transactions.
(b) Notwithstanding anything to the contrary in this Section 3.37.05, the Board may furnish information to, and enter into discussions with, a Shareholder 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 having consulted with a financial advisor of nationally recognized reputation, which may include Jxxxxxxxx & Company, Inc. or an Affiliate or division thereof), that such proposal or offer constitutes a Superior Proposal, or in the absence of a Superior Proposal, determined, in its good faith judgment after consultation with independent legal counsel, that the furnishing of such information or entering into discussions is also required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (ii) provided written notice to Purchaser of its intent to furnish information or enter into discussions with such Person at least two Business Days prior to taking any such action, and (iii) obtained from such Person an executed confidentiality agreement on customary terms (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).
(c) Except as set forth in this Section 7.05(c), neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a director manner adverse to Purchaser, the approval or officer recommendation by the Board or any such committee of any Transaction Agreement or any of the Transactions (a “Change in the Company 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 Board determines, in its good faith judgment prior to the Swap Closing and after consultation with independent legal counsel, that it is required to make a Change in the Company Recommendation to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, the Board may take any action make a Change in his capacity as such the Company Recommendation, but only (including complying with i) after providing written notice to Purchaser (a “Notice of Change in Recommendation”) advising Purchaser that the Board intends to effect a Change in the Company Recommendation and the manner in which it intends (or exercising his may intend) to do so, and (ii) if Purchaser does not, within five (5) Business Days of Purchaser’s receipt of the Notice of Change in Recommendation, make an offer that the Board determines, in its good faith judgment that it is no longer required by its fiduciary duties as to make a member of Change in the Board of Directors of the Company) as is not limited by the terms of the Merger AgreementCompany Recommendation.
Appears in 2 contracts
Samples: Investment Agreement (United Energy Group LTD), Investment Agreement (United Energy Group LTD)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date neither it nor any Subsidiary nor any Representative of this Agreement until the Termination Date, the Shareholder shall notit or any Subsidiary will, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"i) to, directly or indirectly, solicit, initiate or encourage (including by means way of furnishing nonpublic information), or take any other action to facilitatefor the purpose of facilitating, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementbelow), or (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance for the purpose of facilitating such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment providing for or otherwise relating to or endorse any Competing Transaction, other than with Parent or an affiliate (iv) authorize or permit any Representative of Parentthe Company or any of its Subsidiaries to take any such action. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 hoursone business day) notify Parent if after the Company receives any oral or written proposal or offer, offer or any inquiry or contact, constituting contact with any person regarding a potential proposal or offer regarding a Competing Transaction is madeTransaction, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer (including material amendments or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written proposed material reasonably relating theretoamendments). The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the contrary in this Section 6.4, the Company Board may furnish information to, and enter into discussions with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Company Board has (i) determined, in its good faith judgment (after consulting with its financial advisor), that such proposal or offer constitutes or could lead to a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consulting with its outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such proposal or offer, the failure to furnish such information or enter into discussions would be inconsistent with its fiduciary duties under applicable Law, (iii) provided written notice to Parent of its intent to furnish information or enter into discussions with such person prior to taking any such action and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party).
(c) Except as set forth in this Section 6.4(c) and subject to Section 8.1(e), neither the Company Board nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval or recommendation by the Company Board or its committees of this Agreement or the Merger (a “Change in the Company 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 (except for a confidentiality agreement as provided in Section 6.4(b) above). Notwithstanding the provisions foregoing, if the Company Board determines, in its good faith judgment at any time prior to the approval of the Merger by the holders of Shares after consulting with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that the failure to make a Change in the Company Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Company Board may make a Change in the Company Recommendation and/or recommend a Superior Proposal, but only (i) after providing written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation and (ii) if Parent does not prior to three business days after Parent’s receipt of the Notice of Superior Proposal make an offer that the Company Board determines, in its good faith judgment (after consulting with its financial advisor), to be at least as favorable to the Company’s stockholders as such Superior Proposal. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction or otherwise in order to comply with its fiduciary duties under applicable Law or Rule 14d-9 or 14e-2 under the Exchange Act will not constitute a violation of this Section 3.3Agreement or a Change in Company Recommendation.
(d) A “Competing Transaction” means any of the following (other than the Merger): (i) any merger, a Shareholder who is also a director consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or officer other similar transaction involving the Company or any Subsidiary; (ii) any sale, lease, exchange, transfer or other disposition of all or substantially all of the assets of the Company may take or of any Subsidiary; (iii) any sale, exchange, transfer or other disposition in which the Company or any Subsidiary participates (including by way of taking any action in his capacity as such (including complying to comply with or exercising his fiduciary duties as a member Section 203 of the Board DGCL, but excluding typical stock transfer functions) and which results in any person beneficially owning more than 50% of Directors any class of equity securities of the CompanyCompany or of any Subsidiary; or (iv) as is not limited by the terms any tender offer or exchange offer that, if consummated, would result in any person beneficially owning more than 50% of any class of equity securities of the Merger AgreementCompany or of any Subsidiary.
Appears in 2 contracts
Samples: Merger Agreement (Carreker Corp), Merger Agreement (Checkfree Corp \Ga\)
No Solicitation of Transactions. The Shareholder(a) Subject to Section 5.4, subject to the last sentence of this Section 3.3, agrees that from and after the date of this Agreement until the Termination Dateearlier of the Closing or the termination of this Agreement in accordance with its terms, the Shareholder Company shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it not authorize or permit any of its officers, trustees, directors, officers employees, agents or employees or any representatives (including investment bankerbankers, financial advisor, attorney, accountant or other representative retained by it advisors, attorneys, brokers, finders or any of its Subsidiaries other agents) (such officers, trustees, directors, employees, agents and representatives, collectively, the "REPRESENTATIVES"“Representatives”) to, directly or indirectly, solicit(i) initiate, initiate solicit or knowingly encourage or facilitate (including by means way of furnishing nonpublic information), or take any other action to facilitate, ) any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to result in, a Competing Transaction or (ii) enter into discussions or negotiations with, or provide any confidential information or data to, any Person relating to a Competing Transaction.
(b) Subject to Section 5.4, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall take all actions reasonably necessary to cause its Representatives to immediately cease any discussions or negotiations with any Person other than the Purchasers and its Representatives with respect to, or that would reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction.
(c) From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, or agree to or endorse any Competing Transactionthe Company shall notify the Purchasers, other than with Parent or an affiliate orally and in writing, immediately following receipt, of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, material terms and the Shareholder shall promptly inform Parent as to the material details conditions of any such proposal, offer, inquiry written or contact, oral proposal (including the identity of the party making parties) which the Company or any of its Representatives may receive after the date hereof relating to a Competing Transaction and shall keep the Purchasers informed in all material respects and on a timely basis as to the status of and any material developments regarding any such proposal.
(d) For purposes of this Agreement, offera “Competing Transaction” means any of the following (other than the transactions expressly provided for in and to be effected pursuant to this Agreement): (i) any merger, inquiry reorganization, consolidation, share exchange, business combination, liquidation, dissolution, recapitalization or contactsimilar transaction involving the Company; (ii) any direct or indirect acquisition or purchase, andin a single transaction or series of related transactions, of (x) 20% or more of the consolidated gross assets of the Company and the Subsidiaries, taken as a whole, (y) 20% or more of any class of voting securities of the Company or any Subsidiary (or any debt or equity securities convertible into or exercisable or exchangeable for such amount of voting securities) or (z) 15% or more of any class of voting securities of the Company or any Subsidiary (or any debt or equity securities convertible into or exercisable or exchangeable for such amount of voting securities) if such securities carry the right, contractually or otherwise, to appoint or designate any member or members of the Board; or (iii) any tender offer or exchange offer that, if consummated, would result in writingany Person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) beneficially owning 20% or more of any class of voting securities of the Company.
(e) For purposes of this Agreement, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to “Superior Competing Transaction” means a bona fide proposal for a Competing Transaction. Notwithstanding , which proposal was not, directly or indirectly, the provisions result of a breach of this Section 3.35.3, made by a Shareholder who is also a director or officer third party (x) on terms that the Board determines in its good faith judgment (based on the financial analysis and other advice of the Company’s financial advisors and the advice of outside counsel, and after giving effect to the payment of the Reimbursable Expenses pursuant to Section 9.1 and to the expected timing of the closing of the proposed Competing Transaction) to be more favorable to the shareholders of the Company may take than the Transactions (taking into account any action changes to the Transactions contemplated by Section 5.4(b)), (y) which is reasonably likely to be consummated (taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal, including any conditions, and the identity of the offeror) and (z) for which financing, to the extent required, is then fully committed or which, in his capacity as such (including complying with or exercising his fiduciary duties as a member the good faith judgment of the Board of Directors (based on the advice of the Company) as ’s financial advisers), is not limited reasonably capable of being timely financed by the terms of the Merger Agreementsuch third party.
Appears in 2 contracts
Samples: Investment Agreement (Gleacher & Company, Inc.), Investment Agreement (First Albany Companies Inc)
No Solicitation of Transactions. (a) The ShareholderCompany and its Representatives immediately shall cease and cause to be terminated all existing discussions or (formal or informal) negotiations with any parties conducted heretofore with respect to a Competing Transaction (as defined below). The Company agrees that, subject to until the last sentence earlier of this Section 3.3, agrees that from the date Effective Time or the termination of this Agreement until the Termination Datepursuant to its terms, the Shareholder shall notneither it nor its Subsidiary nor any of their respective Representatives will, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"i) to, directly or indirectly, solicit, initiate or encourage (including by means way of furnishing nonpublic informationinformation or otherwise), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction Transaction, (as defined in the Merger Agreement), or ii) enter into or maintain or continue discussions or negotiate (formal or informal) negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to to, approve, endorse or endorse recommend any Competing Transaction, or resolve, agree or publicly propose to take any such action, or enter into any letter of intent, memorandum of understanding, term sheet, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other than with Parent contract, agreement or an affiliate commitment contemplating or otherwise relating to or that is intended to or is reasonably likely to lead to a Competing Transaction, or (iv) authorize or permit any of Parentthe Company’s Representatives to take any such action. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 hoursthree (3) notify Parent business days after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, proposal or offer or inquiry or contact, and, if in writing, promptly deliver contact (including material amendments or cause to be delivered to proposed material amendments) and shall provide Parent with a copy of any such proposal, offer, inquiry written offer or contact and any other written material reasonably relating theretoinquiry. The Shareholder Company shall provide Parent with at least forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board is reasonably expected to consider any Competing Transaction.
(b) Parent and its Representatives immediately shall cease and cause to be terminated all existing discussions or (formal or informal) negotiations with any parties conducted heretofore with respect to a any E-Commerce Competing Transaction (as defined below). Parent agrees that, until the earlier of the Effective Time or the termination of this Agreement pursuant to its terms, neither it nor its subsidiaries nor any of their respective Representatives will, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information or otherwise), 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 E-Commerce Competing Transaction, (ii) enter into or maintain or continue discussions or (formal or informal) negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for an E-Commerce Competing Transaction, or (iii) agree to, approve, endorse or recommend any E-Commerce Competing Transaction, or resolve, agree or publicly propose to take any such action, or enter into any letter of intent, memorandum of understanding, term sheet, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other contract, agreement or commitment contemplating or otherwise relating to or that is intended to or is reasonably likely to lead to an E-Commerce Competing Transaction, or (iv) authorize or permit any of Parent’s Representatives to take any such action. Notwithstanding Parent shall notify Company and Equityholder Representative as promptly as practicable (and in any event within three (3) business days after Parent attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any person with respect thereto, regarding an E-Commerce Competing Transaction is made, specifying the provisions of this Section 3.3, a Shareholder who is also a director or officer material terms and conditions thereof and identity of the Company may take any action in his capacity as party making such proposal or offer or inquiry or contact (including complying material amendments or proposed material amendments) and shall provide the Company and Equityholder Representative with a copy of such written offer or exercising his fiduciary duties inquiry. Parent shall provide the Company with at least forty-eight (48) hours prior notice (or such lesser prior notice as a member is provided to the members of the Board Parent Board) of Directors any meeting of the Company) as Parent Board at which the Parent Board is not limited by the terms of the Merger Agreementreasonably expected to consider any E-Commerce Competing Transaction.
Appears in 2 contracts
Samples: Merger Agreement (Navarre Corp /Mn/), Merger Agreement (Navarre Corp /Mn/)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall Company will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of and will instruct its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Representatives not to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementparagraph (b) of this Section 6.05), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate authorize or permit any of Parentits Representatives to take any such action. The Shareholder Company shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder Company shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including including, without limitation, the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. Notwithstanding anything to the provisions of contrary in this Section 3.36.05, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Company’s Board of Directors of may furnish information to, and enter into discussions or negotiations with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction only if the Company’s Board of Directors has (i) reasonably concluded after consultation with its financial advisor that such proposal or offer constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), (ii) reasonably concluded, after consultation with its 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 Parent of its intent to furnish information or enter into discussions or negotiations with such person at least one business day prior to taking any such action and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Non-Disclosure Agreement; provided, however, that no information may be furnished and no discussions may be entered into in the event that the Company has breached this Section 6.05(a); provided further, however, that the Company’s Board of Directors shall furnish to Parent all information provided to the person who has made the Superior Proposal to the extent that such information has not limited by been previously provided to Parent and shall keep Parent promptly and reasonably informed as to the terms status of the Merger Agreementany discussions regarding such Superior Proposal.
Appears in 2 contracts
Samples: Merger Agreement (Ariba Inc), Merger Agreement (Ariba Inc)
No Solicitation of Transactions. (a) The ShareholderCompany 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 shall notify in writing each party with which the Company has, in the last twelve months, held any discussions, negotiations or communications with respect to a Competing Transaction and that remain in possession of non-public information in respect of the Company that was furnished by or on behalf of the Company and its Affiliates in connection with such discussions to return or destroy all such information in accordance with and subject to the last sentence terms of this Section 3.3, agrees that from the date of this Agreement until applicable nondisclosure agreement between the Termination Date, the Shareholder Company and such party.
(b) The Company shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, nor shall it authorize or permit any Affiliate or Representative of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Company to, directly or indirectly, (i) solicit, initiate or intentionally encourage the submission of, any Competing Transaction or (including by means of furnishing nonpublic information)ii) participate in 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 knowingly facilitate, any inquiries induce or encourage the making of any proposal that constitutes, or offer with respect may reasonably be expected to lead to, any Competing Transaction. Notwithstanding the foregoing, if, prior to obtaining the Company Required Vote, (i) the Company has complied with this Section 5.7, and (ii) the Company Board of Directors reasonably determines in good faith that a Competing Transaction constitutes or that would reasonably may be expected to lead to a proposal Superior Competing Transaction, then, to the extent required by the fiduciary obligations of the Company Board of Directors, 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 with Section 5.7(d), furnish information with respect to the Company to, and participate in discussions and negotiations directly or offer forthrough its Representatives with, such Third Party, subject to a confidentiality agreement not materially less favorable to the Company than the Confidentiality Agreement.
(c) 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 Parent or Merger Sub, the approval and recommendation by the Company Board 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 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 written agreement 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 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 5.7(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).
(d) The Company shall notify Parent promptly (but in no event later than thirty-six (36) hours) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) of any Competing Transaction, or of any inquiry that would reasonably be expected to lead to a Competing Transaction. In such notice, the Company shall identify the Third Party making, and details of the material terms and conditions of, any such Competing Transaction. The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Competing Transaction, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least forty-eight (48) hours prior notice of any meeting of the Company Board of Directors (or such lesser notice as is provided to the members of the Company Board of Directors) at which the Company Board of Directors is reasonably expected to consider any Competing Transaction. The Company shall promptly provide Parent with a list of any non-public information concerning the Company’s business, present or future performance, financial condition or results of operations, provided in connection with any such Competing Transaction, and, to the extent such information has not been previously provided to Parent, copies of such information
(e) Notwithstanding anything to the contrary set forth in Section 5.7(d), the Company Board of Directors shall prior to recommending, approving or consummating a Superior Competing Transaction, give Parent the opportunity to meet with the Company and its outside counsel and Company Financial Advisor for the purpose of enabling Parent, on the one hand, and the Company, on the other hand, to negotiate in good faith to make such adjustments in the terms and conditions of this Agreement so that such Competing Transaction ceases to constitute a Superior Competing Transaction.
(f) Nothing contained in this Section 5.7 or any other provision hereof shall prohibit the Company or the Company Board of Directors from taking and disclosing to the Company Stockholders pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act 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 5.7(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 defined such term is used in Section 251 of the Merger Agreement)DGCL) contained herein, or enter into (ii) approve or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain recommend a Competing Transaction, or agree propose publicly to approve or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to recommend a Competing Transaction. Notwithstanding the provisions of .
(g) Nothing in this Section 3.3, a Shareholder who is also a director or officer of 5.7 shall permit the Company may take any action to terminate this Agreement (except as expressly provided in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger AgreementArticle VII).
Appears in 2 contracts
Samples: Merger Agreement (Emergent BioSolutions Inc.), Merger Agreement (Trubion Pharmaceuticals, Inc)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from (i) the date Company and each of this Agreement until the Termination DateSubsidiaries, and the Shareholder shall officers and directors of the Company and each of the Subsidiaries, and any investment banker, attorney or accountant retained by the Company or any of the Subsidiaries will not, directly or indirectly, nor, in case and (ii) the Shareholder is a corporation or other entity, shall it Company will not authorize or permit knowingly permit, and will use its reasonable best efforts to cause, any other agents, employees, advisors and representatives of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its the Company and the Subsidiaries (collectively, the "REPRESENTATIVES") not to, directly or indirectly, : (x) solicit, initiate or knowingly encourage (including by means way of furnishing nonpublic information), or take any other action to facilitate, ) any inquiries or the making of any proposal of offer (including, without limitation, any proposal or offer with respect toto its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or (y) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (z) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder Company shall notify Parent as promptly as reasonably practicable (but and in any event within 24 hoursone (1) notify Parent business day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact (including material amendments or proposed material amendments). As of the date of this Agreement, the Company shall, and shall direct or cause its and the Subsidiaries’ directors, officers, employees, representatives and agents to, immediately cease any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties that may have been conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a Shareholder who is also a director or officer of party; provided that the Company may take waive the confidentiality provisions of any action such agreement to the extent such a waiver is in his capacity the ordinary course of its business consistent with past practice.
(b) Notwithstanding anything to the contrary in this Section 6.04, 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, if the Board has (i) determined, in its good faith judgment (after having consulted with its financial advisor), that such proposal or offer is, or could reasonably be expected to result in, a Superior Proposal, (ii) determined, in its good faith judgment after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that, in light of such proposal or offer, 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 Parent of its intent to furnish information or enter into discussions with such person at least two (2) business days prior to taking any such action, and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 6.04(c), neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval or recommendation by the Board or any such committee of this Agreement, the Merger or any other Transaction (a “Change in the Company 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, or anything else to the contrary contained herein, if the Board determines, in its good faith judgment prior to the time of the Stockholders Meeting and after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that it is required to make a Change in the Company Recommendation to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, the Board may make a Change in the Company Recommendation; provided, however, that the Board may make a Change in the Company Recommendation as a result of a Superior Proposal only (i) after providing written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the 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 Board intends to effect a Change in the Company Recommendation and the manner in which it intends (or may intend) to do so, (ii) if Parent does not, within four (4) business days of Parent’s receipt of the Notice of Superior Proposal, make an offer that the Board determines, in its good faith judgment (after having consulted with its financial advisor) to be at least as favorable to the Company’s stockholders as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger AgreementSuperior Proposal.
Appears in 2 contracts
Samples: Merger Agreement (Bio Logic Systems Corp), Merger Agreement (Natus Medical Inc)
No Solicitation of Transactions. The Shareholder, subject Prior to the last sentence earlier of this Section 3.3, agrees that from (A) the date Closing Date or (B) the termination of this Agreement until in accordance with the Termination Dateprovisions of Section 7.1, the Shareholder shall notneither Company, directly or indirectly, northrough any director, in case the Shareholder is a corporation or other entityofficer, shall it authorize or permit any of its directorsemployee, officers or employees or any investment banker, financial advisor, attorney, accountant or other agent or representative retained by it or any of its Subsidiaries (collectivelyCompany, the "REPRESENTATIVES") tonor Parent, directly or indirectlyindirectly through any affiliate of Parent or otherwise, shall solicit, initiate or encourage the submission of proposals or offers from any person relating to any acquisition or purchase of all or any portion of the Company Common Stock, Assets (including by means other than in the ordinary course of furnishing nonpublic information)business) or Business of, or take any equity interest in, Company, or any business combination with Company and other than with Acquisition Co. or any affiliate of Acquisition Co., participate in any negotiations regarding, or furnish to any other action to facilitate, person any inquiries or the making of any proposal or offer information with respect to, or that reasonably may be expected to lead to a proposal otherwise cooperate in any way with, or offer forassist or participate in, facilitate or encourage, any Competing Transaction (as defined in effort or attempt by any other Person to do or seek any of the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with foregoing. Company and Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeshall, and the Shareholder shall promptly inform Parent as to the material details cause any of any such proposaltheir respective representatives or affiliates to, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all or withdrawn any existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transactionany of the foregoing (other than in respect of the transaction contemplated hereby). In addition, prior to the earlier of (A) the Closing Date or (B) termination of this Agreement in accordance with the provisions of Section 7.1, Parent agrees not to, directly or indirectly, through any affiliate of Parent or otherwise, reinstate or make any new tender offer to purchase shares of Company Common Stock or any other type of acquisition of all, or substantially all, of the capital stock or assets of Company, whether by merger or other type of business combination with Company. Company and the Parent shall promptly notify Acquisition Co. if any such proposal or offer, or any inquiry or contact with any person with respect thereto, is made and shall, in any such notice to Acquisition Co., indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal or offer. Notwithstanding the provisions of this Section 3.3foregoing, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of Company shall be permitted (A) in response to an unsolicited bona fide written Acquisition Proposal (as hereinafter defined) from any Person (as hereinafter defined) received after the date of this Agreement, to recommend such Acquisition Proposal to its stockholders or withdraw or modify in any adverse manner the Company Recommendation, and (B) to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person received after the date of this Agreement, if and only to the extent that, in any such case described in the preceding clause (A) or (B), (i) the Board of Directors of Company shall have concluded in good faith that such Acquisition Proposal (x) in the case described in clause (A) above would, if consummated, constitute a Superior Proposal (as hereinafter defined), or (y), in the case described in clause (B) above, could reasonably be expected to constitute a Superior Proposal, (ii) the Board of Directors of Company shall have determined in good faith after consultation with outside legal counsel that such action is necessary for such Board of Directors to be deemed to have acted in a manner consistent with its fiduciary duties under the DGCL and (iii) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors shall have received from such Person an executed confidentiality agreement containing terms and provisions no less favorable to Company than those contained in the Confidentiality Agreement between Acquisition Co. and Company. Company shall, within one (1) as is not limited by business day, notify Acquisition Co. in writing of any and all such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated or continued with, any of its representatives, which notice shall set forth the name(s) of such Person and the material terms and conditions of any Acquisition Proposals. Company shall keep Acquisition Co. fully and promptly informed of the Merger Agreementstatus (including amendments or proposed amendments) of any such Acquisition Proposal. Nothing in this Section 4.10 shall permit Company to terminate this Agreement (except as specifically provided in Section 7.1(f) hereof). Nothing contained in this Agreement shall be deemed to restrict the parties from complying with Rule 14d-9 or 14e-2 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Iconix Brand Group, Inc.), Merger Agreement (Mossimo Inc)
No Solicitation of Transactions. The Shareholder(a) Seller shall immediately cease and cause to be terminated any existing discussions or negotiations relating to a Competing Proposal (as defined below), subject other than with respect to the last sentence of this Section 3.3Mergers, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall with any parties conducted heretofore. Seller will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it and will not authorize or knowingly permit any of its directors, officers or employees or any officers, employees, accountants, consultants, legal counsel, agents, investment bankerbankers and other advisors (collectively, financial advisor, attorney, accountant or other representative retained by it “Advisors”) of Seller or any of its the Seller Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicitinitiate, initiate solicit or encourage (including by means way of furnishing nonpublic informationinformation or assistance), or knowingly take any other action to or facilitate, any inquiries or the making of any proposal or offer with respect tothat constitutes, or that would reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Proposal, or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of or relating to such inquiries or to obtain a Competing TransactionProposal, or agree to or endorse any Competing TransactionProposal or authorize or permit any Advisor of Seller or any Seller Subsidiary to take any such action, other than with Parent or an affiliate of Parent. The Shareholder and Seller shall promptly (but and in any event within 24 hoursone (1) business day of Seller’s knowledge notify Parent the Company if any proposal such inquiries or offer, or any inquiry or contact, constituting or proposals are made regarding a Competing Transaction is madeProposal, and Seller shall provide the Shareholder shall Company, as promptly inform Parent as to practicable, oral and written notice setting forth the material details terms of any material amendments to such proposalproposals; provided, offerhowever, inquiry that prior to such time as the stockholders of Seller shall have adopted and approved this Agreement in accordance with the DGCL, nothing contained in this Agreement shall prohibit the Board of Directors of Seller from, in connection with a Competing Proposal that the Board of Directors of Seller in good faith, after consultation with its outside counsel and financial advisor, concludes is likely to result in, or contactconstitutes, including the identity of the party making any such proposala Superior Competing Transaction (as defined below), offerfurnishing information to, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing entering into discussions or negotiations with with, any parties conducted heretofore with respect person that makes an unsolicited bona fide proposal to acquire Seller pursuant to a Competing Transaction. Notwithstanding merger, consolidation, share exchange, business combination or other similar transaction, if, and only to the provisions extent that, (A) the Board of this Section 3.3Directors of Seller, a Shareholder who is also a director or officer of the Company may after consultation with its outside counsel, determines in good faith that failure to take any such action in his capacity as such (including complying with or exercising his fiduciary duties as a member would be reasonably likely to constitute failure of the Board of Directors of Seller to comply with its fiduciary duties to stockholders imposed by Delaware law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person, Seller provides written notice to the CompanyCompany to the effect that is furnishing information to, or entering into discussions or negotiations with, such person, (C) as is not limited by prior to furnishing such information to such person, Seller receives from such person an executed confidentiality agreement, and (D) Seller keeps the terms Company informed, on a current basis, of the Merger status and details of any such discussions or negotiations. Nothing contained in this Agreement shall prohibit Seller or the Board of Directors of Seller from complying with Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act.
(b) For purposes of this Agreement, “Competing Proposal” shall mean any of the following involving Seller or any Seller Subsidiary: any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of Seller and the Seller Subsidiaries taken as a whole, or 15% or more of any class of equity securities of Seller or any of the Seller Subsidiaries, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more any class of equity securities of Seller or any of the Seller Subsidiaries, or any merger, consolidation, business combination, recapitalization, or similar transaction involving Seller or any of the Seller Subsidiaries, other than the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Alphasmart Inc), Agreement and Plan of Merger and Reorganization (Renaissance Learning Inc)
No Solicitation of Transactions. The Shareholder, subject to solely in the last sentence Shareholder's capacity as a shareholder of this Section 3.3the Company, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"“Representatives”) to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect that constitutes, or may reasonably be likely to lead to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction Takeover Proposal (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing TransactionTakeover Proposal, or agree to or endorse any Competing TransactionTakeover Proposal, or authorize or permit any of its Representatives to take any such action, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) immediately notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction Takeover Proposal is made, and the Shareholder shall promptly immediately inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing TransactionTakeover Proposal. Notwithstanding the provisions of this Section 3.33.03, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement.
Appears in 2 contracts
Samples: Shareholder Agreement (Sanchez Computer Associates Inc), Shareholder Agreement (Sanchez Computer Associates Inc)
No Solicitation of Transactions. The Shareholder, subject (a) Subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date8.04(b), the Shareholder shall Company will not, directly or indirectly, norand will instruct its officers, in case the Shareholder is a corporation directors, employees, subsidiaries, agents or advisors or other entityrepresentatives (including, shall it authorize or permit any of its directorswithout limitation, officers or employees or any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectivelyit), the "REPRESENTATIVES") not to, directly or indirectly, solicit, initiate or encourage (including by means 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(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementbelow), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of the officers, directors or employees of such party or any of its subsidiaries, or any investment banker, financial advisor, attorney, accountant or other than with Parent representative retained by the Company or an affiliate any of Parentits Subsidiaries, to take any such action. The Shareholder Company shall promptly (but in any event within 24 hours) notify Parent promptly if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the provisions of contrary in this Section 3.38.04, the Company Board may furnish information to, enter into discussions or negotiations with, and maintain or continue such discussions or negotiations with, a Shareholder person who is also has made an unsolicited, written, bona fide proposal or offer regarding a director or officer of Competing Transaction, and the Company Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation (which may take any action be Advisor)), that such proposal or offer is reasonably likely to constitute a Superior Proposal (as defined below), (ii) determined, in his capacity as such its good faith judgment after consultation with independent legal counsel (including complying with or exercising his fiduciary duties as a member of the Board of Directors of who may be the Company's regularly engaged independent legal counsel), that, in light of such proposal or offer, the furnishing of such information or the holding of discussions or negotiations is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, and (iii) as is not limited by the terms provided written notice to Parent of the Merger Agreementits intent to furnish information or to hold discussions or negotiations with such person at least two business days prior to taking any such action.
Appears in 1 contract
No Solicitation of Transactions. The ShareholderFrom the date hereof until the earlier to occur of (1) the Effective Time and (2) the termination of the Merger Agreement for any reason (regardless of the circumstances (whether or not there is a dispute as to whether such termination was in accordance with the Merger Agreement)) (the “No Shop Term”), subject to the last sentence of this Section 3.3, each Stockholder agrees that from the date of this Agreement until the Termination Date, the Shareholder he shall not, directly or indirectly, northrough any officer, in case the Shareholder is a corporation director, agent or other entityotherwise, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"a) to, directly or indirectly, solicit, initiate or encourage solicit (including by means way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect tothat constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse any Competing Transaction, other than with Parent or an affiliate (iv) authorize or permit any agent of Parent. The Shareholder shall promptly (but in the Stockholder or any event within 24 hours) notify Parent if any proposal or offerof its Affiliates, or any inquiry investment banker, financial advisor, attorney, accountant or contactother representative retained by the Stockholder or any of its Affiliates, constituting to take any such action; provided, however, that nothing in this Section 3.02 shall prevent a Stockholder or regarding such Stockholder’s representatives or agents, in any such person’s capacity as a Competing Transaction is madedirector or executive officer of the Company from engaging in any activity permitted pursuant to Section 6.04 of the Merger Agreement. Unless the No Shop Term has expired, each Stockholder shall, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver direct or cause to be delivered to Parent a copy of such proposalStockholder’s representatives and agents to, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore that may be ongoing with respect to a any Competing Transaction. Notwithstanding During the provisions of this Section 3.3No Shop Term, each Stockholder shall notify Parent as promptly as practicable (and in any event within one (1) day after the Stockholder attains knowledge thereof), orally and promptly thereafter in writing, if any proposal or offer, or any inquiry or contact with any person with respect thereto, regarding a Shareholder who Competing Transaction is also a director made, specifying the material terms and conditions (including material amendments or officer proposed material amendments) thereof and the identity of the Company may take any action in his capacity as party making such (including complying with proposal or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementoffer or inquiry or contact.
Appears in 1 contract
Samples: Company Shareholder Support Agreement (Ispat International Nv)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date of this Agreement until the Termination Date, the Shareholder it shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, and shall it not authorize or permit any of its directors, officers or officers, employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") representatives 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 means 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 that constitutes or offer may reasonably be expected to lead to, any Acquisition Proposal, except to notify such Person as to the existence of these provisions (except to the extent permitted pursuant to this Section 5.7);
(iii) approve, endorse or recommend any Acquisition Proposal with respect to the Company (except to the extent permitted by this Section 5.7); or
(iv) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal or a transaction contemplated thereby (except for confidentiality agreements permitted pursuant to Section 5.7(c)). The Company shall immediately terminate all discussions or negotiations, if any, with any third party with respect to, or any that could reasonably may be expected to lead to a proposal or offer forcontemplate the possibility of, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of ParentAcquisition Proposal. The Shareholder Company shall promptly as soon as practicable demand that each Person which has executed, since January 1, 2003, a confidentiality agreement with the Company or any of its Affiliates or any of its or their 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 by the Company or any of its Affiliates or subsidiaries or any of its or their representatives to such Person or any of its Affiliates or any of its or their representatives.
(b) Promptly (but in any event within 24 36 hours) notify Parent if after receipt of any proposal or offer, Acquisition Proposal or any request for nonpublic information or inquiry which it reasonably believes could lead to an Acquisition Proposal, the Company shall provide Merge with written notice of the material terms and conditions of such Acquisition Proposal, request or contact, constituting or regarding a Competing Transaction is madeinquiry, and the Shareholder identity of the Person or group making any such Acquisition Proposal, request or 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, the Company shall promptly inform Parent as to keep Merge informed in all material respects of the status and details (including material details amendments or proposed material amendments) of any such proposalAcquisition Proposal, offerrequest or inquiry and shall promptly provide to Merge a copy of all written materials subsequently provided in connection with such Acquisition Proposal, inquiry request or contactinquiry.
(c) If the Company receives an Acquisition Proposal which (i) constitutes a Superior Proposal or (ii) which the Board of Directors of the Company in good faith concludes could reasonably be expected to result in a Superior Proposal, including the Company shall promptly provide to Merge 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 (either directly or through its subsidiaries or any of their respective directors, officers, employees or representatives):
(i) furnish nonpublic information to the third party making such Acquisition Proposal, provided, that (A) prior to so furnishing, the Company receives from the third party an executed confidentiality agreement containing customary standstill provisions and other terms and conditions that are no less restrictive to such third party than the terms and conditions of the nondisclosure agreement entered into between Merge and the Company dated September 22, 2004 and (B) contemporaneously with furnishing any such proposalnonpublic information to such third party, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent the Company furnishes a copy of such proposal, offer, inquiry nonpublic information to Merge (to the extent such nonpublic information has not been previously so furnished); and
(ii) participate or contact and engage in any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore the third party with respect to the Acquisition Proposal.
(d) For a Competing Transaction. Notwithstanding the provisions period of this Section 3.3, a Shareholder who is also a director or officer of not less than five Business Days after Merge's receipt from the Company may take any action of each Superior Proposal Notice, the Company shall, if requested by Merge, negotiate in his capacity as such good faith with Merge to revise this Agreement so that the Acquisition Proposal that constituted a Superior Proposal no longer constitutes a Superior Proposal.
(including complying e) Notwithstanding anything in this Agreement to the contrary, in response to the receipt of a Superior Proposal that has not been withdrawn and continues to constitute a Superior Proposal after the Company's compliance with or exercising his fiduciary duties as a member of Section 5.7(d), the Board of Directors of the Company) as Company may withhold, withdraw or modify the Company Recommendation and, in the case of a Superior Proposal that is not limited 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 terms Board of Directors or a committee thereof, a "Change of Recommendation" ) and, pursuant to Section 9.1(d), may terminate this Agreement, if both of the following conditions in Sections 5.7(e)(i) and 5.7(e)(ii) are met:
(i) the approval of the Merger Agreementby the Company's stockholders has not been obtained; and
(ii) the Board of Directors of the Company has concluded in good faith, following the receipt of advice of its outside legal counsel, that, in light of such Superior Proposal, the failure of the Board of Directors to effect a Change of Recommendation would result in a breach of its fiduciary obligations to its stockholders under applicable Law.
(f) Nothing contained in this Agreement shall be deemed to restrict the Company from complying with Rules 14d-9 or 14e-2.
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject (a) Prior to the last sentence of this Section 3.3Effective Time, agrees that from the date of each party to this Agreement until the Termination Date, the Shareholder shall (i) will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it and will not authorize or permit any of its officers, directors, officers employees, subsidiaries, agents or employees advisors or other representatives (including, without limitation, any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectivelyit), the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or knowingly encourage (including by means way of furnishing nonpublic non-public information), or take any other action knowingly to facilitate, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Third-Party Transaction, or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Third-Party Transaction, or agree to or endorse any Competing Third-Party Transaction, ; (ii) shall notify the other than with Parent or an affiliate of Parent. The Shareholder shall parties promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Third-Party Transaction is made, and the Shareholder ; (iii) shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Third-Party Transaction and promptly request that all confidential information furnished on behalf of such party be returned; and (iv) agrees not to release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the contrary in Section 8.4(a), each party to this Agreement may furnish information to, and may participate in discussions or negotiations with, any person that, unsolicited by such party, has delivered a bona fide written proposal with respect to a Competing Transaction. Notwithstanding , in each case to the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of extent that the Board of Directors of such party determines in good faith that the Companyfailure to do so would cause the Board of Directors of such party to breach its fiduciary duties to such party or its stockholders under applicable Laws after consultation with independent legal counsel (who may be such party's regularly engaged independent legal counsel) as is and, notwithstanding anything to the contrary contained in this Agreement or the Ancillary Agreements, any such furnishing of information and participation in discussions or negotiations shall not limited constitute a breach of this Agreement or the Ancillary Agreements by such party; provided, however, that any party furnishing such information, or participating in such discussions or negotiations shall notify the other promptly of such action and shall, in any such notice, indicate the identity of the person making the written proposal referred to in this Section 8.4(b) and, in reasonable detail, the terms and conditions of the Merger Agreementsuch written proposal.
Appears in 1 contract
Samples: Combination Agreement (New Morton International Inc)
No Solicitation of Transactions. The Shareholder, subject (a) Each party to the last sentence of this Section 3.3, Agreement agrees that from the date neither it nor any of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit its respective subsidiaries nor any of its directors, officers or employees or any of its respective subsidiaries will, and that it will cause its and its respective subsidiaries' agents, advisors and other representatives (including, without limitation, any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectivelySubsidiaries), the "REPRESENTATIVES") not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by means way of furnishing nonpublic information), or take any other action knowingly to facilitate, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its shareholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementbelow), or (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, (iii) agree to, approve, endorse or agree recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse any Competing Transaction, or (iv) authorize or permit any of the officers, directors or employees of such party or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other than with Parent or an affiliate of Parentrepresentative retained by such party, to take any such action. The Shareholder Each party to this Agreement shall notify each other party as promptly as practicable (but and in any event within 24 hours) notify Parent 48 hours after each party to this Agreement attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and (including material amendments or proposed material amendments). Each party to this Agreement shall provide each other party with 24 hours prior notice (or such lesser prior notice as is provided to the members of the Board of Directors of such party) of any other written material meeting of the Board of Directors of such party at which such Board of Directors is reasonably relating theretoexpected to consider any Competing Transaction. The Shareholder Each party to this Agreement immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Each party to this Agreement shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and each party 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) such party or any of its respective subsidiaries, 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 such party and, if requested by the other party, to enforce such person's obligation to do so.
(b) Notwithstanding anything to the provisions of contrary in this Section 3.37.04, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of Romarco or Western, as the Companycase may be, 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 such Board of Directors has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation), that such proposal or offer constitutes a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consultation with independent legal counsel (who may be such party's regularly engaged independent 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 Romarco or Western, as the case may be, and its shareholders under applicable Law, (iii) provided written notice to each other party 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 (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to each other party than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not limited include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting such party from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 7.04(c), the Western Board shall not make a change in the Western Board Recommendation (a "Change in the Western Board Recommendation") or approve or recommend, or cause or permit Western to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction. Notwithstanding the foregoing, if the Western Board determines, in its good faith judgment prior to the Effective Time and after consultation with independent legal counsel (who may be such party's regularly engaged independent legal counsel), that it is required to make a Change in the Western Board Recommendation to comply with its fiduciary obligations to Western and its shareholders under applicable Law, the Western Board may recommend a Superior Proposal, but only (i) after providing written notice to each other party (a "Notice of Western Superior Proposal") advising each other party that it 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 it intends to effect a Change in the Western Board Recommendation and the manner in which it intends (or may intend) to do so, and (ii) if Romarco does not, within three (3) business days of its receipt of the Notice of Western Superior Proposal, make an offer that the Western Board determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation) to be at least as favorable to such party's shareholders as such Superior Proposal. Any disclosure that the Western Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction or otherwise in order to comply with its fiduciary obligations to Western and its shareholders under applicable Law or Rule 14d-9 or 14e-2 of the Exchange Act will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the terms Western Board in violation of this Section 7.04. Notwithstanding anything to the contrary contained in this Agreement, the obligation of Western to call, give notice of, convene and hold the Western Shareholders' Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Western Board Recommendation. Western shall not submit to the vote of its shareholders any Competing Transaction, or propose to do so. Any withdrawal, modification or change of recommendation of the Merger Western Board, the approval or recommendation or proposed approval or recommendation of any Superior Proposal or the entry by Western into any agreement with respect to any Superior Proposal shall not change the approval of the Western Board for purposes of causing any state takeover statute or other state law to be inapplicable to the Transactions.
(d) [Reserved].
(e) Except as set forth in this Section 7.04(e), the Romarco Board shall not make a change in the Romarco Board Recommendation (a "Change in the Romarco Board Recommendation") or approve or recommend, or cause or permit Romarco to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction. Notwithstanding the foregoing, if the Romarco Board determines, in its good faith judgment prior to the Effective Time and after consultation with independent legal counsel (who may be such party's regularly engaged independent legal counsel), that it is required to make a Change in the Romarco Board Recommendation to comply with its fiduciary obligations to Romarco and its shareholders under applicable Law, the Romarco Board may recommend a Superior Proposal, but only (i) after providing written notice to each other party (a "Notice of Romarco Superior Proposal") advising each other party that it 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 it intends to effect a Change in the Romarco Board Recommendation and the manner in which it intends (or may intend) to do so, and (ii) if Western does not, within three (3) business days of its receipt of the Notice of Romarco Superior Proposal, make an offer that the Romarco Board determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation) to be at least as favorable to such party's shareholders as such Superior Proposal. Any disclosure that the Romarco Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction or otherwise in order to comply with its fiduciary obligations to Romarco and its shareholders under applicable Law or Rule 14d-9 or 14e-2 of the Exchange Act will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the Romarco Board in violation of this Section 7.04. Notwithstanding anything to the contrary contained in this Agreement, the obligation of Romarco to call, give notice of, convene and hold the Romarco Shareholders' Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Romarco Board Recommendation. Romarco shall not submit to the vote of its shareholders any Competing Transaction, or propose to do so. Any withdrawal, modification or change of recommendation of the Romarco Board, the approval or recommendation or proposed approval or recommendation of any Superior Proposal or the entry by Romarco into any agreement with respect to any Superior Proposal shall not change the approval of the Romarco Board for purposes of causing any takeover statute or other law to be inapplicable to the Transactions.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Romarco Minerals Inc)
No Solicitation of Transactions. (a) The ShareholderCompany agrees that, subject to the last sentence of this except as provided in Section 3.35.10(b), agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall neither it authorize or permit nor any of its directors, officers or employees or will, and that it will cause its agents, advisors and other representatives (including, without limitation, any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"it) not to, directly or indirectly, (i) solicit, initiate or encourage (including by means 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(including, without limitation, any proposal or offer to its shareholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse any Competing Transaction, or (iv) authorize or permit any of the officers, directors or employees of the Company, or any investment banker, financial advisor, attorney, accountant or other than with Parent or an affiliate of Parentrepresentative retained by the Company, to take any such action. The Shareholder Company shall notify the Purchaser as promptly as practicable (but and in any event within 24 hourstwenty-four (24) notify Parent hours after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the Shareholder identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall promptly inform Parent as to keep the material details Purchaser reasonably informed of the status of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder 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 5.10, the Company and its directors, officers, employees, agents, advisors and other representatives may take the actions specified in Section 5.10(a) with respect to a Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction that the Company's board of directors has (i) determined, in its good faith judgment (after consultation with its financial advisor), would constitute a Superior Proposal or is reasonably likely to lead to the delivery of a Superior Proposal, (ii) determined, in its good faith judgment after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), that the furnishing of information or entering into discussions or taking of other actions is required in order to allow the Company's board of directors to comply with its fiduciary obligations to the Company and its shareholders under applicable Law, (iii) provided written notice to the Purchaser of its intent to furnish information or enter into discussions with such person at least one Business Day prior to taking any such action, and (iv) obtained from such Person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the confidentiality agreement executed by the Purchaser.
(c) Except as set forth in this Section 5.10(c), neither the Company's board of directors nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Purchaser, the Company Recommendation (a "Change in the Company 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 provisions foregoing, if the Company's board of this Section 3.3directors determines, a Shareholder who is also a director or officer in its good faith judgment prior to the time of the Company Shareholders' Meeting and after consultation with independent legal counsel (who may take any action be the Company's regularly engaged independent legal counsel), that it is required to make a Change in his capacity as the Company Recommendation to comply with its fiduciary obligations to the Company and its shareholders under applicable Law, the Company's board of directors may make a Change in the Company Recommendation, but only after providing written notice to the Purchaser advising the Purchaser that the Company's board of directors intends to effect a Change in the Company Recommendation and the manner in which it intends (or may intend) to do so and stating whether or not such (including complying with or exercising his fiduciary duties Change in the Company Recommendation is being made as a member of the Board of Directors result of the Company) as is not limited by 's receipt of a Superior Proposal in which case notice to the Purchaser shall specify the material terms and conditions of such Superior Proposal and identify the Merger AgreementPerson making such Superior Proposal.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Pac-West Telecomm Inc)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, Shareholder agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect that constitutes, or may reasonably be likely to lead to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction Takeover Proposal (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing TransactionTakeover Proposal, or agree to or endorse any Competing TransactionTakeover Proposal, or authorize or permit any of its Representatives to take any such action, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) immediately notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction Takeover Proposal is made, and the Shareholder shall promptly immediately inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger AgreementTakeover Proposal.
Appears in 1 contract
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from neither it nor any Company Subsidiary nor any of the date directors, officers or employees of this Agreement until it or any Company Subsidiary will, and that it will not authorize or permit its and the Termination DateCompany Subsidiaries' agents, the Shareholder shall notadvisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary), to, directly or indirectly, nor(i) solicit (including by way of furnishing nonpublic information), or take any other action intended 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 constitutes, or may reasonably be expected to lead to, any Competing Transaction, or (ii) enter into or maintain or continue discussions or negotiations with any person or entity in case the Shareholder is furtherance of such inquiries or to obtain a corporation proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other entitycontract, shall it agreement or commitment contemplating or otherwise relating to any Competing Transaction, or (iv) authorize or permit any of its directorsthe officers, officers directors or employees of the Company or any of the Company Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by it the Company or any of its Subsidiaries (collectivelythe Company Subsidiaries, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or to take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parentaction. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 hoursone (1) notify Parent day after an executive officer of the Company attains knowledge thereof), orally and promptly thereafter in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, proposal or offer or inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder 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) of any meeting of the Company Board at which the Company Board is expected to discuss 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. Notwithstanding The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the provisions Company also agrees to promptly request each person that has heretofore executed a confidentiality agreement in connection with its consideration of this Section 3.3acquiring (whether by merger, a Shareholder who is also a director acquisition of stock or officer 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 to such person by or on behalf of the Company or any Company Subsidiary and, if requested by Parent, to enforce such person's obligation to do so.
(b) Notwithstanding anything to the contrary in this Section 6.04, the Company Board may take furnish or cause to be furnished information to, and enter or cause to be entered into discussions with, a person who has made an unsolicited, written proposal or offer regarding a Competing Transaction, if the Company Board has (i) determined, in its good faith judgment (after consultation with a financial advisor), that such proposal or offer constitutes a Superior Proposal, (ii) provided written notice to Parent of its intent to furnish information to or enter into discussions with such person at least three business days prior to taking any such action and (iii) obtained from such person an executed confidentiality agreement on terms determined by the Company in his capacity good faith not to be substantially 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). The Company will use reasonable best efforts to keep Parent informed on a reasonably prompt basis of the status of any negotiations it enters into with any Person regarding a Superior Proposal, including any material amendments or proposed material amendments thereto. The Company will provide Parent with all information regarding the Company with which Parent has not previously been provided that is provided to any person making a Superior Proposal.
(c) Except as permitted by this Section 6.04(c), neither the Company Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Recommendation (a "Change in the Company 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 prior to the time of the Company Stockholders' Meeting and after consultation with legal counsel (who may be the Company's regularly engaged legal counsel), that it is required to make a Change in the Company Recommendation to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, the Company Board may (i) make a Change in the Company Recommendation or (ii) terminate this Agreement pursuant to Section 8.01(j), but only, in the case of this clause (ii), (A) after providing written notice to Parent (a "Notice of Superior Proposal") advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and indicating that the Company Board intends to consider whether to effect a Change in the Company Recommendation and (B) if Parent does not, within three (3) business days of Parent's receipt of the Notice of Superior Proposal, make an offer that the Company Board determines at meeting of the Company Board held for such purpose, in its good faith judgment (after consultation with a financial advisor) to be at least as favorable to the Company's stockholders as such Superior Proposal. No disclosure that the Company Board may determine in good faith (including complying after consultation with counsel, who may be the Company's regularly engaged counsel) that it or exercising his fiduciary duties as the Company is required to make under applicable Law will constitute a member violation of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the obligation of the Board of Directors of Company to call, give notice of, convene and hold the Company) as is Company Stockholders' Meeting shall not be limited or otherwise affected by the terms commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Merger AgreementCompany Recommendation. The Company shall not submit to the vote of its stockholders any Competing Transaction, or propose to do so, except as permitted herein.
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject Prior to the last sentence earlier of this Section 3.3, agrees that from (A) the date Closing Date or (B) the termination of this Agreement until in accordance with the Termination Dateprovisions of Section 8.1, the Shareholder shall notneither TDK nor Parent shall, directly or indirectly, northrough any director, in case the Shareholder is a corporation or other entityofficer, shall it authorize or permit any of its directorsemployee, officers or employees or any investment banker, financial advisor, attorney, accountant or other agent or representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectlyTDK otherwise, solicit, initiate or encourage the submission of proposals or offers from any person relating to any acquisition or purchase of all or any portion of the TDK Common Stock, Assets (including by means other than in the ordinary course of furnishing nonpublic information)business) or Business of, or take any equity interest in, TDK, or any business combination with TDK and other than with Take-Two or any affiliate of Take-Two, participate in any negotiations regarding, or furnish to any other action to facilitate, person any inquiries or the making of any proposal or offer information with respect to, or that reasonably may be expected to lead to a proposal otherwise cooperate in any way with, or offer forassist or participate in, facilitate or encourage, any Competing Transaction (as defined in effort or attempt by any other person to do or seek any of the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parentforegoing. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, TDK and the Shareholder Parent shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all any existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transactionany of the foregoing (other than in respect of the transaction contemplated hereby). TDK and the Parent shall promptly notify Take-Two if any such proposal or offer, or any inquiry or contact with any person with respect thereto, is made and shall, in any such notice to Take-Two, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal or offer. Notwithstanding the provisions of this Section 3.3foregoing, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of TDK shall be permitted (A) in response to an unsolicited bona fide written Acquisition Proposal (as hereinafter defined) from any Person (as hereinafter defined) received after the Companydate of this Agreement, to recommend such Acquisition Proposal to its stockholders or withdraw or modify in any adverse manner its approval or recommendation of this Agreement, and (B) to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person received after the date of this Agreement, if and only to the extent that, in any such case described in the preceding clause (A) or (B), (i) the Board of Directors of TDK shall have concluded in good faith that such Acquisition Proposal (x) in the case described in clause (A) above would, if consummated, constitute a Superior Proposal (as hereinafter defined), or (y), in the case described in clause (B) above, could reasonably be expected to constitute a Superior Proposal, (ii) the Board of Directors of TDK shall have determined in good faith after consultation with outside legal counsel that such action is not limited necessary for such Board of Directors to be deemed to have acted in a manner consistent with its fiduciary duties under the DGCL and (iii) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors shall have received from such Person an executed confidentiality agreement containing terms and provisions no less favorable to TDK than those contained in the Confidentiality Agreement. TDK shall, within one (1) business day, notify Take-Two in writing of any and all such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated or continued with, any of its representatives, which notice shall set forth the name(s) of such Person and the material terms and conditions of any Acquisition Proposals. TDK shall keep Take-Two fully and promptly informed of the Merger Agreementstatus (including amendments or proposed amendments) of any such Acquisition Proposal. Nothing in this Section 5.10 shall permit TDK to terminate this Agreement (except as specifically provided in Section 8.1(e) hereof).
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from From the date hereof until the earlier of (i) the Closing or (ii) termination of this Agreement until the Termination Datepursuant to Section 14 hereof, the Shareholder Seller shall not, directly or indirectly, northrough any director, in case the Shareholder is a corporation or other entityofficer, shall it authorize or permit any of its directorsemployee, officers or employees or any investment banker, financial advisor, attorney, accountant or other agent or representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, Seller solicit, initiate or encourage or knowingly facilitate (including by means of furnishing nonpublic non-public information), or take any other action to facilitate, ) any inquiries or the making submission of proposals or offers from any proposal person relating to any acquisition or offer purchase of all or any portion of the Assets (other than in the ordinary course of business) or Business of, or any equity interest in, Seller, or any merger, consolidation, share exchange, amalgamation, reorganization, recapitalization, tender offer, exchange offer, business combination or other similar transaction involving Seller, and, other than with Buyer or any of its Affiliates, participate in any discussions or negotiations regarding, or furnish to any other person any information with respect to, or that reasonably may be expected to lead to a proposal otherwise cooperate in any way with, or offer forassist or participate in, facilitate or encourage, any Competing Transaction (as defined in effort or attempt by any other Person to do or seek any of the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parentforegoing. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeSeller shall, and the Shareholder shall promptly inform Parent as to the material details cause any of any such proposalits respective representatives or Affiliates to, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all or withdrawn any existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transactionany of the foregoing (other than in respect of the transactions contemplated hereby). Notwithstanding From the provisions date hereof until the earlier of (i) the Closing or (ii) termination of this Agreement pursuant to Section 3.314 hereof, a Shareholder who Seller shall, within two (2) business days, notify Buyer if any such proposal or offer, or any inquiry or contact with any person with respect thereto, is also a director or officer made and shall, in any such notice to Buyer, indicate in reasonable detail the identity of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by offeror and the terms and conditions of the Merger Agreementany proposal or offer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Iconix Brand Group, Inc.)
No Solicitation of Transactions. The Shareholder(a) Seller shall immediately cease and cause to be terminated any existing discussions or negotiations relating to a Competing Proposal (as defined below), subject other than with respect to the last sentence of this Section 3.3Mergers, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall with any parties conducted heretofore. Seller will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it and will not authorize or knowingly permit any of its directors, officers or employees or any officers, employees, accountants, consultants, legal counsel, agents, investment bankerbankers and other advisors (collectively, financial advisor, attorney, accountant or other representative retained by it “Advisors”) of Seller or any of its the Seller Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicitinitiate, initiate solicit or encourage (including by means way of furnishing nonpublic informationinformation or assistance), or knowingly take any other action to or facilitate, any inquiries or the making of any proposal or offer with respect tothat constitutes, or that would reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Proposal, or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of or relating to such inquiries or to obtain a Competing TransactionProposal, or agree to or endorse any Competing TransactionProposal or authorize or permit any Advisor of Seller or any Seller Subsidiary to take any such action, other than with Parent or an affiliate of Parent. The Shareholder and Seller shall promptly (but and in any event within 24 hoursone (1) business day of Seller’s knowledge notify Parent the Company if any proposal such inquiries or offer, or any inquiry or contact, constituting or proposals are made regarding a Competing Transaction is madeProposal, and Seller shall provide the Shareholder shall Company, as promptly inform Parent as to practicable, oral and written notice setting forth the material details terms of any material amendments to such proposalproposals; provided, offerhowever, inquiry that prior to such time as the stockholders of Seller shall have adopted and approved this Agreement in accordance with the DGCL, nothing contained in this Agreement shall prohibit the Board of Directors of Seller from, in connection with a Competing Proposal that the Board of Directors of Seller in good faith, after consultation with its outside counsel and financial advisor, concludes is likely to result in, or contactconstitutes, including the identity of the party making any such proposala Superior Competing Transaction (as defined below), offerfurnishing information to, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing entering into discussions or negotiations with with, any parties conducted heretofore with respect person that makes an unsolicited bona fide proposal to acquire Seller pursuant to a Competing Transaction. Notwithstanding merger, consolidation, share exchange, business combination or other similar transaction, if, and only to the provisions extent that, (A) the Board of this Section 3.3Directors of Seller, a Shareholder who is also a director or officer of the Company may after consultation with its outside counsel, determines in good faith that failure to take any such action in his capacity as such (including complying with or exercising his fiduciary duties as a member would be reasonably likely to constitute failure of the Board of Directors of Seller to comply with its fiduciary duties to stockholders imposed by Delaware law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person, Seller provides written notice to the CompanyCompany to the effect that is furnishing information to, or entering into discussions or negotiations with, such person, (C) as is not limited by prior to furnishing such information to such person, Seller receives from such person an executed confidentiality agreement, and (D) Seller keeps the terms Company informed, on a current basis, of the Merger status and details of any such discussions or negotiations. Nothing contained in this Agreement shall prohibit Seller or the Board of Directors of Seller from complying with Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act.
(b) For purposes of this Agreement., “
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from (a) From the date hereof to termination of this Agreement until the Termination DateOffer (as defined below), Sellers and the Shareholder Company shall not, directly or indirectly, nor, in case solicit or initiate the Shareholder is a corporation or other entity, shall it authorize or permit submission of any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it proposal to (i) acquire the Company or any of the shares of its Subsidiaries shares of outstanding stock, (collectivelyii) acquire substantially all of the Company's assets or (iii) merge, consolidate or engage in a similar corporate transaction with respect to the Company (each, an "Acquisition Proposal"). Notwithstanding the preceding sentence, however, subject to the terms and conditions of this Section 6.4, Sellers, the "REPRESENTATIVES") toCompany and its Board of Directors may participate in any discussions or negotiations and may furnish to any other Person information with respect to the Company regarding any potential Acquisition Proposal not solicited, directly or indirectly, solicitby the Company, initiate or encourage (including by means its Board of furnishing nonpublic information)Directors, or take any other action to facilitate, any inquiries or Sellers after the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parentdate hereof. The Shareholder Company or Sellers, as applicable, shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as provide to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent Purchaser a copy of all written non-public information provided to anyone in connection with or related to an actual or potential Acquisition Proposal (or, a reasonably detailed description of the information provided, if such proposalinformation has been previously delivered or made available to Purchaser) within two business days following the initial delivery of such non-public information. Sellers or the Company, offeras applicable, inquiry will notify Purchaser of (1) receipt by any Seller or contact the Company of any written Acquisition Proposal and (2) any other Acquisition Proposal not in writing which the Company has presented to its Board of Directors and (3) dissemination of any written material reasonably relating theretonotice to the Company's Board of Directors indicating an intent to raise or discuss any Acquisition Proposal at any meeting. The Shareholder immediately Company and Sellers shall cease provide to Purchaser such notification orally within two business days and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer in writing within three business days of the Company may take any action in his capacity as such (including complying with time of receipt of a written Acquisition Proposal, or exercising his fiduciary duties as a member the date of, or notice to, the meeting of the Board of Directors at which an oral Acquisition Proposal was considered. The notice shall identify in reasonable detail the terms and conditions of the Acquisition Proposal including, but not limited to, the identity of the Person making such Proposal (unless the release of such identity is prohibited by confidentiality agreements or otherwise) and the date of the meeting of the Board of Directors at which the Acquisition Proposal was or is to be considered. The Company and Sellers shall keep Purchaser informed of any material changes to any Acquisition Proposal. For purposes of this paragraph, the term "Sellers" shall not include the Non-Selling Parties or a Seller acting on behalf of, and only at the direction of, a Non-Selling Party. Sellers represent (which representation shall survive Closing) that they will not bring or solicit any Proceeding on behalf of the Non-Selling Shareholders that, if successful, could prevent or delay any of the Contemplated Transactions or which is encompassed by Section 12 herein unless such Sellers are legally obligated to take such action as nominees for the beneficial owners of shares (the Non-Selling Shareholders). Purchaser acknowledges that the Sellers have the right at any time to transfer title to shares of the Company) as is not limited by the terms 's common stock to any one or more of the Merger AgreementNon-Selling Shareholders.
(b) The Board of Directors shall be permitted to withdraw its approval and recommendation of the Contemplated Transactions, but only if a Superior Offer is pending at the time the Board of Directors determines to take such action. The Company shall give Purchaser written notice of any such withdrawal within two business days of its occurrence
Appears in 1 contract
Samples: Stock Purchase Agreement (United Park City Mines Co)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from neither it nor any Subsidiary nor any of the date directors, officers or employees of this Agreement until the Termination DateCompany or any Subsidiary will, the Shareholder shall notand 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, in each case, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"i) to, directly or indirectly, solicit, initiate or encourage (including by means 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(including, without limitation, any proposal or offer to its shareholders) that constitutes, or that could reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or (ii) enter into or into, maintain or continue discussions or negotiate with negotiations with, or provide any nonpublic information to, any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or Contract or commitment contemplating or otherwise relating to or endorse any Competing Transaction, other than with Parent or an affiliate (iv) authorize or permit any of Parent. The Shareholder shall promptly (but in the officers, directors or employees of the Company or any event within 24 hours) notify Parent if any proposal or offerof its Subsidiaries, or any inquiry investment banker, financial advisor, attorney, accountant or contact, constituting other Representative retained by or regarding a Competing Transaction is made, and acting directly or indirectly under the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity direction of the party making Company or any such proposalof its Subsidiaries, offer, inquiry or contact, and, if to take any action set forth in writing, promptly deliver or cause to be delivered to Parent a copy clauses (a)(i) – (a)(iii) of such proposal, offer, inquiry or contact and any other written material reasonably relating theretothis Section 6.06. The Shareholder Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. The Company immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore therefore with respect to a Competing Transaction. Notwithstanding .
(b) Subject to the provisions of Company’s compliance with this Section 3.36.06, in the event that, after the date hereof but prior to the receipt of the Requisite Company Vote, the Company receives from a Shareholder who is also Third Party an unsolicited bona fide written proposal or offer regarding a director Competing Transaction that the Special Committee determines in good faith (after consultation with the Special Committee’s outside financial and legal advisors) constitutes or officer of would reasonably be expected to result in a Superior Proposal, then the Company may take any action the following actions: (i) furnish information concerning the Company and its Subsidiaries to the person making such proposal or offer regarding a Competing Transaction (and its respective Representatives); and (ii) engage in his capacity as such discussions or negotiations (including complying with or exercising his fiduciary duties including, as a member part thereof, making counterproposals) with such person (and its Representatives) with respect to such proposal or offer regarding a Competing Transaction; provided that (A) such person has executed a confidentiality agreement containing terms no less favorable to the Company than the Confidentiality Agreement; (B) any information furnished to such person shall, to the extent not previously provided to Parent, be provided to Parent at substantially the same time it is provided to such person, and (C), prior to taking any actions specified in the foregoing clause (i) or (ii), the Company shall notify Parent orally and in writing that it proposes to furnish information or enter into discussions or negotiations with a Third Party pursuant to this Section 6.06(b).
(c) The Company shall notify Parent as promptly as practicable (and in any event within 48 hours after the Company attains knowledge thereof), orally and in writing, of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement.any proposal or offer, or any inquiry or contact with any person, regarding a Competing Transaction or that would reasonably be expected to lead to a Competing Transaction, specifying
Appears in 1 contract
No Solicitation of Transactions. The Shareholderff) Subject to Section 6.04(b), subject each party to the last sentence of this Section 3.3Agreement agrees that, agrees that from and after the date hereof until the earlier of the Effective Time and the termination of this Agreement until the Termination Datepursuant to Article VIII, the Shareholder it shall not, and shall not permit any of its subsidiaries or any of its or its subsidiaries’ directors, officers or employees to, and shall use its best efforts to cause its investment bankers, attorneys, accountants and other representatives retained by it or any of its subsidiaries not to, directly or indirectly: (i) solicit, norinitiate 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 a Competing Transaction (as defined below); (ii) enter into or maintain or continue discussions or negotiations with any person in case the Shareholder is furtherance of such inquiries or to obtain a corporation Competing Transaction; (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other entitycontract, shall it agreement or commitment contemplating or otherwise relating to any Competing Transaction; or (iv) authorize or permit any of its directorsthe officers, officers directors or employees of such party or any of its subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectivelysuch party, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or to take any such action. Each party to this Agreement shall notify the other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction party as promptly as practicable (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but and in any event within 24 hoursone day after such party attains knowledge thereof) notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder Each party to this Agreement immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of Each party to this Section 3.3Agreement shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementparty.
Appears in 1 contract
Samples: Merger Agreement (Wits Basin Precious Minerals Inc)
No Solicitation of Transactions. The Shareholder, subject to the last sentence None of this Section 3.3, agrees that from the date of this Agreement until the Termination DateGFI, the Shareholder shall notCompany nor any of their Affiliates, directly or indirectlytheir Affiliates' respective officers, noremployees, in case the Shareholder is a corporation directors, agents or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries representatives (collectively, the "REPRESENTATIVESRepresentatives") will, and GFI and, the Company shall use their commercially reasonable efforts to cause no Stockholders of the Company to, directly or indirectly, (i) solicit, initiate initiate, encourage or encourage accept any other inquiries, proposals or offers from any person (including by means x) relating to any acquisition or purchase of furnishing nonpublic informationall or any portion of the capital stock of the Company or material portion of the assets of the Company outside of the ordinary course of business consistent with past practice, excluding the issuance of Shares upon the exercise of Options, (y) enter into any merger, recapitalization, reorganization, joint venture or other business combination with the Company or (z) enter into any other extraordinary business transaction involving or otherwise relating to the Company (any of the transactions described in clauses (x), (y) and (z) being referred to herein as a "Business Combination") or take (ii) other than to notify a person who has contacted the Company or any of its Representatives in connection with a Business Combination that the Company is unable to respond thereto, participate in any discussions, conversations, negotiations or other communications with any other action person regarding, or furnish to facilitate, any inquiries or the making of other person any proposal or offer information with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of ParentBusiness Combination. The Shareholder Company shall promptly (but in any event within 24 hours) notify Parent promptly if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or other contact and with any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions individual or negotiations with any parties conducted heretofore entity with respect to a Competing TransactionBusiness Combination, is made or received by the Company or any of its Representatives. Notwithstanding The parties agree that irreparable harm would occur in the provisions of event any obligation under this Section 3.3, a Shareholder who is also a director or officer was not performed in accordance with its terms and that Parent shall be entitled to specific performance of the Company may take terms thereof, in addition to any action other remedy available at law or in his capacity as such (including complying with or exercising his fiduciary duties as a member equity, without the necessity of demonstrating the Board inadequacy of Directors of the Company) as is not limited by the terms of the Merger Agreementmoney damages.
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject to solely in the last sentence Shareholder’s capacity as a shareholder of this Section 3.3the Company, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"“Representatives”) to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect that constitutes, or may reasonably be likely to lead to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction Takeover Proposal (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing TransactionTakeover Proposal, or agree to or endorse any Competing TransactionTakeover Proposal, or authorize or permit any of its Representatives to take any such action, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) immediately notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction Takeover Proposal is made, and the Shareholder shall promptly immediately inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing TransactionTakeover Proposal. Notwithstanding the provisions of this Section 3.33.03, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement.
Appears in 1 contract
Samples: Shareholder Agreement (Sanchez Computer Associates Inc)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of (a) Unless and until this Agreement until is terminated in accordance with its terms, neither the Termination Date, the Shareholder shall notCompany nor its Subsidiaries shall, directly or indirectly, northrough any officer, in case the Shareholder is a corporation director, agent or other entityotherwise, shall it authorize initiate, solicit or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or knowingly encourage (including by means 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 with respect tothat constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or knowingly permit any of the officers, directors or employees of such party or any of its Subsidiaries or any investment banker, financial advisor, attorney, accountant or other than with Parent representative retained by such party or an affiliate any of Parent. The Shareholder such party's Subsidiaries to take any such action, and the Company immediately shall promptly notify Buyer orally (but in any event within 24 hours) notify Parent if and in writing (within 48 hours) of all of the relevant details relating to all inquiries and proposals which any proposal officer or offerdirector of the Company may receive relating to any of such matters including, or any inquiry or contactwithout limitation, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party person making any such proposal, offer, inquiry or contact, and, proposal and all accompanying information 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 5.3 or any other provision hereof shall prohibit the Company or the Board of Directors from taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. The Company shall promptly deliver provide to Buyer any non-public information regarding the Company provided to any other party which was not previously provided to Buyer.
(b) Notwithstanding the foregoing, prior to the termination of this Agreement, the Company may furnish information concerning its business, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Competing Transaction (PROVIDED that the Company shall not agree to any exclusive right to negotiate with the Company) if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction that provides for consideration which the Board determines in good faith, after receiving an opinion from a nationally recognized investment banking firm, is more favorable to the Company and its stockholders than the terms of this Agreement (taking into account all relevant factors) and which is not conditioned upon obtaining additional financing not fully committed at such time, and (y) in the opinion of the Board, after receiving advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations could reasonably cause the Board of Directors to breach its duties to the Company's stockholders under applicable law (a Competing Transaction which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall promptly provide to Buyer any nonpublic information regarding the Company provided to any other party which was not previously provided to Buyer. If the Company, after consultation with outside legal counsel, believes that a breach of its duties to the Company's stockholders could reasonably occur, the Board may (subject to this and the following sentences) inform the Company's stockholders that it no longer believes that consummating the transaction contemplated by this Agreement is in the best interests of the Company's stockholders and no longer recommends approval (a "Subsequent Determination"), but only at a time that is after the fifth business day following Buyer's receipt of written notice advising that the Board of Directors has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation), identifying the Person making such Superior Proposal and stating that it intends to make a Subsequent Determination. Notwithstanding anything herein to the contrary, prior to and including such fifth day the Company may make such public disclosure that is in its good faith view, after consultation with outside legal counsel, required under the Federal securities laws. After providing such notice, the Company shall provide a reasonable opportunity to Buyer to make such adjustments in the terms and conditions of this Agreement as would enable the Company to proceed with its existing recommendation to its stockholders without a Subsequent Determination. At any time after five business days following notification to Buyer of the Company's intent to do so and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to Section 9.1(g) and enter into an agreement with respect to a Superior Proposal; PROVIDED that the Company shall, concurrently with entering into such agreement, pay or cause to be delivered paid to Parent a copy of such proposal, offer, inquiry or contact and Buyer the Termination Fee (as defined in Section 9.2(b) hereof). Notwithstanding any other written material reasonably relating thereto. The Shareholder immediately provision of this Agreement, unless the Agreement is previously terminated, the Company shall cease and cause submit this Agreement to be terminated all its stockholders, whether or not the Board makes a Subsequent Determination or otherwise withdraws, modifies or fails to make or refrains from making its existing discussions recommendation.
(c) Except as set forth in Section 5.3(b), neither the Board nor any committee thereof shall (i) withdraw or negotiations with modify, or propose to withdraw or modify, in a manner adverse to Buyer, the approval or recommendation by the Board or any parties conducted heretofore such committee the transaction contemplated by this Agreement, (ii) approve or recommend, or propose to approve or recommend, any Competing Transaction or (iii) enter into any agreement with respect to a any Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Price Enterprises Inc)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder Company shall not, directly or indirectly, norand shall instruct its officers, in case the Shareholder is a corporation directors, employees, subsidiaries, agents or advisors or other entityrepresentatives (including, shall it without limitation, any investment banker, attorney or accountant retained by it), not to, directly or indirectly, 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, a transaction involving a change of control of the Company, the sale of all or substantially all of the Company's assets, a merger consolidation or reorganization of or with the Company or any other party, the sale of 25% or more of the Company's stock or other similar transaction (collectively, "Other Transaction"), or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain an Other Transaction, or agree to or endorse any Other Transaction, or authorize or permit any of its directorsthe officers, officers directors or employees of the Company or any Company Subsidiary, or any investment banker, financial advisor, attorney, accountant or other representative retained by it the Company or any of its Subsidiaries (collectivelyCompany Subsidiary, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or to take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parentaction. The Shareholder Company shall promptly (but in any event within 24 hours) notify Parent promptly, and in no event later than one day after receipt, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing an Other Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder Company immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing an Other Transaction. Notwithstanding The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. The Company shall use its best efforts to ensure that its officers, directors, employees, subsidiaries, agents and advisors or other representatives (including, without limitation, any investment banker, attorney or accountant retained by it) are aware of the provisions of restrictions described in this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement6.05.
Appears in 1 contract
No Solicitation of Transactions. (a) The ShareholderCompany shall, subject and shall direct and cause its directors, officers, employees, representatives and other agents to, immediately cease and terminate any discussions or negotiations with any Persons that may have been conducted heretofore with respect to the last sentence of this Section 3.3, a Competing Transaction. The Company agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall neither it authorize or permit nor any of its directors, officers or employees will, and that it will instruct and cause its directors, officers, employees, advisors and other representatives and agents (including any investment banker, attorney or accountant retained by it) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including any proposal or offer to its shareholders) that constitutes, or may reasonably be 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, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to any Competing Transaction, or (iv) authorize or permit any of the officers, directors or employees of the Company, or any investment banker, financial advisor, attorney, accountant or other representative retained by or agent of the Company, to take any such action. The Company shall not release any third party from, or waive any provision of, any confidentiality 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 any assets or otherwise) the Company to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of its Subsidiaries the Company.
(collectivelyb) The Company Board shall not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, the "REPRESENTATIVES") to, directly approval by the Company Board of this Agreement and the Merger or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information)approve, or take cause or permit the Company to enter into any other action to facilitateletter of intent, any inquiries agreement or the making of any proposal or offer obligation with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement.
Appears in 1 contract
Samples: Merger Agreement (Quidel Corp /De/)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of (a) Except as permitted by this Section 3.37.2, agrees that from the date of this Agreement until the Termination Dateearlier of the Effective Time or the termination of this Agreement pursuant to Article IX, the Shareholder Company shall not, directly or indirectlynor shall it permit any of its Subsidiaries to, nor, in case the Shareholder is a corporation or other entity, nor shall it authorize or permit any of its directorsofficer, officers director or employees employee of, or any investment banker, financial advisor, attorney, accountant attorney or other advisor or representative retained by it (collectively, “Representatives”) of the Company or any of its Subsidiaries to, (collectivelyi) solicit or initiate, the "REPRESENTATIVES") toor knowingly encourage or facilitate, directly or indirectly, solicitthe submission of any Acquisition Proposal by any Person other than Parent, initiate Merger Sub or encourage any Affiliates thereof (including by means of furnishing nonpublic information), a “Third Party”) or take any other action that would reasonably be expected to facilitateresult in the receipt by the Company of an Acquisition Proposal from a Third Party, (ii) directly or indirectly participate in discussions or negotiations regarding, or furnish to any inquiries Third Party information with respect to, or facilitate the making of any proposal or offer with respect tothat constitutes, or that would reasonably may be expected to lead to, an Acquisition Proposal, or (iii) enter into any agreement with respect to any Acquisition Proposal with any Third Party; provided that, it is understood and agreed that any determination or action by the Company Board permitted under Section 7.2(b), Section 7.2(e), Section 7.2(f) or Section 9.4(c), shall not, in and of itself, be deemed to be a proposal breach or offer forviolation of this Section 7.2(a) or, any Competing Transaction (as defined in the Merger Agreementcase of Section 7.2(b), give Parent a right to terminate this Agreement pursuant to Section 9.3(b). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of the restrictions set forth in the preceding sentence by any Representative of the Company or enter into any of its Subsidiaries shall be deemed to constitute a breach of this Section 7.2 by the Company.
(b) Notwithstanding anything to the contrary in Section 7.2(a), if at any time on or maintain after the date of this Agreement and prior to the Offer Closing, the Company or continue discussions or negotiate with any person or entity in furtherance its Representatives receives an Acquisition Proposal from a Third Party which did not result from a breach of such inquiries or to obtain a Competing TransactionSection 7.2(a), or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offerand the Company Board, or any inquiry committee thereof, determines in good faith, after consulting with outside legal and financial advisors, that any such Acquisition Proposal constitutes, or contactwould reasonably be expected to lead to, constituting or regarding a Competing Transaction is made, Superior Proposal and the Shareholder shall promptly inform Parent as Company Board, or any committee thereof, determines in good faith, after consultation with outside legal counsel, that the failure to the material details of any take such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause action would reasonably be expected to be delivered to Parent a copy breach of such proposalits fiduciary duties under applicable Law, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of then the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement.and its Representatives
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from neither it nor any Subsidiary nor any of the date directors, officers or employees of this Agreement until the Termination Dateit or any Subsidiary will, the Shareholder shall notand 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, nor(i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), 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, or (ii) enter into or maintain or continue discussions or negotiations with any person or entity in case the Shareholder is furtherance of such inquiries or to obtain a corporation proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other entitycontract, shall it agreement or commitment contemplating or otherwise relating to any Competing Transaction, or (iv) authorize or permit any of its directorsthe officers, 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 it the Company or any of its Subsidiaries (collectivelySubsidiaries, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or to take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parentaction. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 hours) notify Parent one day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder Company shall, and shall direct or cause its and its Subsidiaries' directors, officers, employees, representatives and agents to, immediately shall cease and cause to be terminated all existing any discussions or negotiations with any parties that may have been conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a Shareholder who is also a director or officer of party; provided that the Company may take waive the confidentiality provisions of any action such agreement to the extent such a waiver is in his capacity as such (including complying the ordinary course of its business consistent with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementpast practice.
Appears in 1 contract
Samples: Merger Agreement (Invivo Corp)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, (a) Parent agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall neither it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or nor any of its Subsidiaries (collectivelyshall, the "REPRESENTATIVES") and that it shall cause each of its Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by means way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a (including any proposal or offer forto Parent’s stockholders), with respect to any Competing Transaction Parent Transaction; (as defined ii) enter into, maintain, continue or otherwise engage or participate in the Merger Agreement), or enter into or maintain or continue any discussions or negotiate negotiations with any person or entity Person in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Parent Transaction; (iii) agree to, approve, endorse, recommend or consummate any Competing Parent Transaction; (iv) enter into any Competing Parent Transaction Agreement; (v) take any action to approve a third party becoming an “interested stockholder”, or agree to approve any transaction, for purposes of Section 203 of the DGCL; or endorse (vi) resolve, propose or agree, or authorize any Competing TransactionRepresentative, other than with to do any of the foregoing. Parent acknowledges and agrees that the doing of any of the foregoing by Parent or an affiliate any of Parentits Subsidiaries or Representatives shall be deemed to be a breach by Parent of this Section 7.03(a). The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeshall, and the Shareholder shall promptly inform Parent as to the material details of any such proposalcause its Representatives to, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties Persons (other than Citrix and its Affiliates) conducted prior to the execution of this Agreement by Parent or any of its Representatives with respect to any Competing Parent Transaction. Parent shall not, and shall not permit any of its Representatives to, release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it or one of its Affiliates is a party in connection with a Competing Parent Transaction; provided that Parent shall be permitted to grant a waiver of any standstill agreement, in response to a bona fide unsolicited request for such waiver from the counterparty thereto, to permit a confidential proposal for a Competing Parent Transaction to be made to the Parent Board if the Parent Board determines, in its good faith judgment (after consulting with outside legal counsel), that the failure to take such action would be a breach of the Parent Board’s fiduciary duties under applicable Law. Parent shall promptly request each Person (other than Citrix and its Affiliates) that has heretofore executed a confidentiality agreement with Parent in connection with such Person’s consideration of a Competing Parent Transaction (whether by merger, acquisition of stock or assets or otherwise), to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement.
(b) Parent shall promptly (and in any event within twenty-four (24) hours after Parent attains knowledge thereof) notify Citrix, orally and in writing, after the receipt by Parent or any of its Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Parent Transaction, including any request for discussions or negotiations and any request for information relating to Parent or any of its Affiliates in connection therewith or for access to the business, properties, assets, books or records of Parent or any of its Affiliates with respect thereto. 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 Competing Parent Transaction, and Parent shall promptly (and in any event within twenty-four (24) hours after receipt by Parent) provide to Citrix copies of any written materials received by Parent in connection with any of the foregoing. Parent agrees that it shall keep Citrix reasonably informed of the 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 Parent pursuant to Section 7.03(c). Parent shall provide Citrix with at least forty-eight (48) hours prior notice of any meeting of the Parent Board at which the Parent Board is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Parent Board in respect of such meeting). Parent agrees that it shall substantially simultaneously provide or make available to Citrix any nonpublic information concerning Parent that may be made available pursuant to Section 7.03(c) to any other Person in response to any such proposal, inquiry, offer or request (or any amendment thereto) unless such information has previously been provided or made available by Parent to Citrix.
(c) Notwithstanding anything to the contrary in this Section 7.03, at any time prior to the receipt of the Required Parent Stockholder Vote, Parent may furnish information to, and enter into discussions and negotiations with, a Person who has made an unsolicited written, bona fide proposal or offer with respect to a Competing Parent Transaction that did not arise or result from a breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Parent Board has (i) determined, in its good faith judgment (after consulting with a financial advisor of nationally recognized reputation and outside legal counsel) that such proposal or offer constitutes, or is reasonably likely to lead to, a Superior Proposal; and, after consulting with outside legal counsel, that the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would be a breach of the Parent Board’s fiduciary duties under applicable Law; (ii) provided written notice to Citrix of its intent to furnish information or enter into discussions with such Person prior to taking the first of any such action with respect to any given Person; and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with Parent or having the effect of prohibiting Parent from satisfying its obligations under this Agreement) and, immediately upon its execution, delivered to Citrix a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in this Section 7.03(d), neither the Parent Board nor any committee thereof shall (i) withdraw, qualify, modify, amend or fail to make, or propose publicly to withdraw, qualify, modify or amend the Parent Recommendation; (ii) make any public statement inconsistent with the Parent Recommendation; or (iii) approve or adopt, or recommend the approval or adoption of, or publicly propose to approve or adopt, any Competing Parent Transaction (any of the actions described in (i), (ii) or (iii), a “Change in the Parent Recommendation”). Notwithstanding the provisions foregoing, if at any time prior to the receipt of the Required Parent Stockholder Vote, in response to the receipt of an offer or proposal with respect to a Competing Parent Transaction that did not arise or result from a breach of this Section 3.37.03 or in response to an Intervening Event, the Parent Board determines in its good faith judgment (after consulting with outside legal counsel), that the failure by the Parent Board to make a Change in the Parent Recommendation would be a breach of its fiduciary duties under applicable Law and with respect to an offer or proposal, after consulting with a financial advisor of nationally recognized reputation and outside legal counsel, that such offer or proposal constitutes a Superior Proposal, the Parent Board may, with respect to such Superior Proposal or Intervening Event, make a Change in the Parent Recommendation; provided, however, that the Parent Board shall not be entitled to exercise its right to make a Change in the Parent Recommendation pursuant to this Section 7.03(d) unless:
(i) Parent has provided written notice to Citrix advising Citrix that the Parent Board has received a Superior Proposal or that an Intervening Event has occurred promptly after the Parent Board determines to make a Change in the Parent Recommendation in response to a Superior Proposal or Intervening Event, stating that the Parent Board intends to make a Change in the Parent Recommendation and describing the material terms and conditions of such Superior Proposal or the material facts and circumstances of such Intervening Event; and
(ii) Citrix does not, within five (5) Business Days of receipt of such notice required by Section 7.03(d)(i) (the “Notice Period”), make a written offer or proposal to revise the terms of this Agreement (any such offer, a Shareholder who is also “Revised Transaction Proposal”) in a director manner that the Parent Board determines in its good faith judgment, after consulting with a financial advisor of nationally recognized reputation and outside legal counsel, to be at least as favorable to Parent’s stockholders as such Superior Proposal or, in the case of an Intervening Event, after consulting with outside legal counsel, permits the Board (consistent with its fiduciary duties under applicable Law) to not make a Change in the Parent Board Recommendation; provided, however, that, during the Notice Period, Parent shall negotiate in good faith with Citrix (to the extent Citrix desires to negotiate) regarding any Revised Transaction Proposal; and provided, further, that any amendment to the terms of such Superior Proposal or officer any material change to the facts and circumstances of the Company Intervening Event during the Notice Period shall require a new written notice from Parent describing such amendment or material change and an additional three (3) Business Day Notice Period that satisfies this Section 7.03(d)(ii), including with respect to Parent’s obligations to negotiate in good faith with Citrix.
(e) Any disclosure that the Parent Board may be required to make under applicable Law (including to the extent the Parent Board determines in its good faith judgment, after consultation with outside legal counsel, that the failure to make such disclosure would be a breach of its fiduciary duties under applicable Law) with respect to the receipt of a proposal or offer with respect to a Competing Parent Transaction or under Item 1012(a) of Regulation M-A or Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act will not constitute a violation of this Section 7.03; provided, however, that neither the Parent Board nor any committee thereof shall (i) make a Change in the Parent Recommendation in connection with such disclosure unless permitted by Section 7.03(d) and (ii) any public statement made that relates to a Competing Parent Transaction shall be deemed to be a Change in the Parent Recommendation unless the Parent Board references or otherwise reaffirms the Parent Recommendation in such public statement (it being understood that any “stop, look and listen” communication by or on behalf of Parent pursuant to Rule 14d-9(f) shall not be considered a Change in the Parent Recommendation). Any Change in the Parent Recommendation shall not change the approval of the Parent Board for purposes of causing any state takeover statute or other state Law to be inapplicable to the transactions contemplated by this Agreement.
(f) Citrix agrees that neither it nor any of its Subsidiaries shall, and that it shall cause each of its Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action in his capacity as such to knowingly facilitate, any inquiries or the making of any proposal or offer (including complying any proposal or offer to Parent’s stockholders), with respect to any Competing SpinCo Transaction; (ii) enter into, maintain, continue or exercising his fiduciary duties as otherwise engage or participate in any discussions or negotiations with any Person in furtherance of such inquiries or to obtain a member proposal or offer with respect to a Competing SpinCo Transaction; (iii) agree to, approve, endorse, recommend or consummate any Competing SpinCo Transaction; (iv) enter into any Competing SpinCo Transaction Agreement; or (v) resolve, propose or agree, or authorize any Representative to do any of the Board foregoing. Citrix acknowledges and agrees that the doing of Directors any of the Companyforegoing by Citrix or any of its Subsidiaries or Representatives shall be deemed to be a breach by Citrix of this Section 7.03(f). Citrix shall, and shall cause its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons (other than Parent and its Affiliates) as conducted prior to the execution of this Agreement by Citrix or any of its Representatives with respect to any Competing SpinCo Transaction. Citrix shall not, and shall not permit any of its Representatives to, release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it or one of its Affiliates is not limited a party in connection with any Competing SpinCo Transaction. Citrix shall promptly request each Person (other than Parent and its Affiliates) that has heretofore executed a confidentiality agreement with Citrix in connection with such Person’s consideration of any Competing SpinCo Transaction (whether by merger, acquisition of stock or assets or otherwise), to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the Merger Agreementapplicable confidentiality agreement. Citrix shall promptly (and in any event within twenty-four (24) hours after Citrix attains knowledge thereof) notify Parent, orally and in writing, after the receipt by Citrix or any of its Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing SpinCo Transaction, including any request for discussions or negotiations and any request for information relating to Citrix or any of its Affiliates with respect to the SpinCo Business, or for access to the business, properties, assets, books or records of Citrix or any of its Affiliates with respect to the SpinCo Business.
Appears in 1 contract
Samples: Merger Agreement (LogMeIn, Inc.)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall Company will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of and will instruct its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Representatives not to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to(including, or that reasonably may be expected to lead to a without limitation, any proposal or offer forto its stockholders) that constitutes, or is reasonably likely to lead to, any Competing Transaction (as defined in the Merger Agreementparagraph (b) of this Section 6.04), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate authorize or permit any of Parentits Representatives to take any such action. The Shareholder Company shall promptly (but in any event within 24 hours) notify Parent if any proposal proposal, offer or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder Company shall promptly inform Parent as to the material details of any such proposal, offeroffer or inquiry, inquiry or contactincluding, including without limitation, the identity of the party making any such proposal, offer, inquiry offer or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating theretoinquiry. The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement relating to a Competing Transaction to which it is a party. Notwithstanding anything to the provisions of contrary in this Section 3.36.04, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with furnish information to, and enter into discussions or exercising his fiduciary duties as negotiations with, a member of person who has made an unsolicited, bona fide proposal or offer regarding a Competing Transaction only if the Company’s Board of Directors of has (i) concluded after consultation with the Company’s external legal counsel and its financial advisor that such proposal or offer constitutes or could reasonably lead to a Superior Proposal (as defined below), (ii) has concluded, after consultation with its external legal counsel, that, in light of such Competing Transaction, the failure to furnish such information or enter into discussions or negotiations is reasonably likely to result in a breach of its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided notice to Parent of its intent to furnish information or enter into discussions or negotiations with such person at least one business day prior to taking any such action and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Non-Disclosure Agreement; provided, however, that no information may be furnished and no discussions may be entered into in the event that the Company has intentionally breached this Section 6.04(a); provided further, however, that the Company’s Board of Directors shall furnish to Parent all information provided to the person who has made the Competing Transaction to the extent that such information has not been previously provided to Parent and shall keep Parent promptly and reasonably informed as is not limited by to the terms status of the Merger Agreementany discussions regarding such Competing Transaction.
Appears in 1 contract
Samples: Merger Agreement (I Many Inc)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall neither it authorize or permit nor any Subsidiary nor any of its the directors, officers or employees of it or any Subsidiary will, and that it will not authorize or knowingly permit its or its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"Subsidiary) to, directly or indirectly, (i) solicit, initiate or encourage (including by means way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or facilitate the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to to, a proposal or offer for, any Competing Transaction (as defined in the Merger Agreementbelow), or (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 hourstwo (2) notify Parent days after any director or executive officer of the Company attains knowledge thereof), orally and promptly thereafter in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder Company shall provide Parent with 48 hours prior notice (or such lesser prior notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the contrary in this Section 6.04, 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, if the Company Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of nationally recognized reputation), that such proposal or offer constitutes a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that, in light of such Superior Proposal, the failure to furnish such information or enter into discussions would cause the members of the Company Board of Directors to breach their fiduciary duties to the Company and its stockholders under applicable Law, (iii) provided written notice to Parent of its intent to furnish information or enter into discussions with such person at least three (3) business days prior to taking any such action, and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 6.04(c), neither the Company Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Recommendation (a “Change in the Company 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 provisions foregoing, if the Company Board determines, in its good faith judgment prior to the time of the Company Stockholders’ Meeting and after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that a failure to make a Change in the Company Recommendation would cause the members of the Company Board of Directors to breach their fiduciary duties to the Company and its stockholders under applicable Law, the Company Board may (i) recommend a Superior Proposal or (ii) terminate this Agreement pursuant to Section 8.01(g), but only (A) after providing written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions 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, and (B) if Parent does not, within three (3) business days of Parent’s receipt of the Notice of Superior Proposal, make an offer that the Company Board determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation) to be at least as favorable to the Company’s stockholders as such Superior Proposal. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction or otherwise in order to comply with its fiduciary duties to the Company and its stockholders under applicable Law or Rule 14d-9 or 14e-2 will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the Company Board in violation of this Section 3.36.04(c). Notwithstanding anything to the contrary contained in this Agreement, a Shareholder who is also a director or officer the obligation of the Company may take any action in his capacity as such (including complying with to call, give notice of, convene and hold the Company Stockholders’ Meeting shall not be limited or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited otherwise affected by the terms commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Merger AgreementCompany Recommendation. The Company shall not submit to the vote of its stockholders any Competing Transaction, or propose to do so at the Company Stockholders’ Meeting.
Appears in 1 contract
Samples: Merger Agreement (Stantec Inc)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date of this Agreement until the Termination Date, the Shareholder it shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, and shall it not authorize or permit any of its directors, officers or officers, employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") representatives 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 means 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 that constitutes or offer may reasonably be expected to lead to, any Acquisition Proposal, except to notify such Person as to the existence of these provisions (except to the extent permitted pursuant to this Section 5.7);
(iii) approve, endorse or recommend any Acquisition Proposal with respect to the Company (except to the extent permitted by this Section 5.7); or
(iv) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal or a transaction contemplated thereby (except for confidentiality agreements permitted pursuant to Section 5.7(c)). The Company shall immediately terminate all discussions or negotiations, if any, with any third party with respect to, or any that could reasonably may be expected to lead to a proposal or offer forcontemplate the possibility of, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of ParentAcquisition Proposal. The Shareholder Company shall promptly as soon as practicable demand that each Person which has executed, since January 1, 2003, a confidentiality agreement with the Company or any of its Affiliates or any of its or their 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 by the Company or any of its Affiliates or subsidiaries or any of its or their representatives to such Person or any of its Affiliates or any of its or their representatives.
(b) Promptly (but in any event within 24 36 hours) notify Parent if after receipt of any proposal or offer, Acquisition Proposal or any request for nonpublic information or inquiry which it reasonably believes could lead to an Acquisition Proposal, the Company shall provide Merge with written notice of the material terms and conditions of such Acquisition Proposal, request or contact, constituting or regarding a Competing Transaction is madeinquiry, and the Shareholder identity of the Person or group making any such Acquisition Proposal, request or 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, the Company shall promptly inform Parent as to keep Merge informed in all material respects of the status and details (including material details amendments or proposed material amendments) of any such proposalAcquisition Proposal, offerrequest or inquiry and shall promptly provide to Merge a copy of all written materials subsequently provided in connection with such Acquisition Proposal, inquiry request or contactinquiry.
(c) If the Company receives an Acquisition Proposal which (i) constitutes a Superior Proposal or (ii) which the Board of Directors of the Company in good faith concludes could reasonably be expected to result in a Superior Proposal, including the Company shall promptly provide to Merge 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 (either directly or through its subsidiaries or any of their respective directors, officers, employees or representatives):
(i) furnish nonpublic information to the third party making such Acquisition Proposal, provided, that (A) prior to so furnishing, the Company receives from the third party an executed confidentiality agreement containing customary standstill provisions and other terms and conditions that are no less restrictive to such third party than the terms and conditions of the nondisclosure agreement entered into between Merge and the Company dated September 22, 2004 and (B) contemporaneously with furnishing any such proposalnonpublic information to such third party, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent the Company furnishes a copy of such proposal, offer, inquiry nonpublic information to Merge (to the extent such nonpublic information has not been previously so furnished); and
(ii) participate or contact and engage in any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore the third party with respect to the Acquisition Proposal.
(d) For a Competing Transaction. Notwithstanding the provisions period of this Section 3.3, a Shareholder who is also a director or officer of not less than five Business Days after Merge’s receipt from the Company may take any action of each Superior Proposal Notice, the Company shall, if requested by Merge, negotiate in his capacity as such good faith with Merge to revise this Agreement so that the Acquisition Proposal that constituted a Superior Proposal no longer constitutes a Superior Proposal.
(including complying e) Notwithstanding anything in this Agreement to the contrary, in response to the receipt of a Superior Proposal that has not been withdrawn and continues to constitute a Superior Proposal after the Company’s compliance with or exercising his fiduciary duties as a member of Section 5.7(d), the Board of Directors of the Company) as Company may withhold, withdraw or modify the Company Recommendation and, in the case of a Superior Proposal that is not limited 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 terms Board of Directors or a committee thereof, a “Change of Recommendation”) and, pursuant to Section 9.1(d), may terminate this Agreement, if both of the following conditions in Sections 5.7(e)(i) and 5.7(e)(ii) are met:
(i) the approval of the Merger Agreementby the Company’s stockholders has not been obtained; and
(ii) the Board of Directors of the Company has concluded in good faith, following the receipt of advice of its outside legal counsel, that, in light of such Superior Proposal, the failure of the Board of Directors to effect a Change of Recommendation would result in a breach of its fiduciary obligations to its stockholders under applicable Law.
(f) Nothing contained in this Agreement shall be deemed to restrict the Company from complying with Rules 14d-9 or 14e-2.
Appears in 1 contract
Samples: Merger Agreement (Faliks Aviel)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date neither it nor any Subsidiary nor any Representative of this Agreement until the Termination Date, the Shareholder shall notit or any Subsidiary will, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"i) to, directly or indirectly, solicit, initiate or encourage (including by means way of furnishing nonpublic information), or take any other action to facilitatefor the purpose of facilitating, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementbelow), or (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance for the purpose of facilitating such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment providing for or otherwise relating to or endorse any Competing Transaction, other than with Parent or an affiliate (iv) authorize or permit any Representative of Parentthe Company or any of its Subsidiaries to take any such action. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 twenty-four (24) hours) notify Parent if after the Company receives any oral or written proposal or offer, offer or any inquiry or contact, constituting contact with any person regarding a potential proposal or offer regarding a Competing Transaction is madeTransaction, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer (including material amendments or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written proposed material reasonably relating theretoamendments). The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the contrary in this Section 6.05, the Company Board may furnish information to, and enter into discussions with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Company Board has (i) determined, in its good faith judgment (after consulting with its financial advisor), that such proposal or offer constitutes or could lead to a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consulting with its outside legal counsel (who may be the Company's regularly engaged outside legal counsel), that, in light of such proposal or offer, the failure to furnish such information or enter into discussions would be inconsistent with its fiduciary duties under applicable Law, (iii) provided written notice to Parent of its intent to furnish information or enter into discussions with such person prior to taking any such action and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 6.05(c), neither the Company Board nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Company Board or any such committee of this Agreement, the Offer, the Merger or any other Transaction (a "Change in the Company 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 (except for a confidentiality agreement as provided in Section 6.05(b) above). Notwithstanding the provisions foregoing, if the Company Board determines, in its good faith judgment prior to the time of the acceptance for payment of Shares pursuant to the Offer and after consulting with outside legal counsel (who may be the Company's regularly engaged outside legal counsel), that the failure to make a Change in the Company Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Company Board may make a Change in the Company Recommendation and/or recommend a Superior Proposal, but only (i) after providing written notice to Parent (a "Notice of Superior Proposal") advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation and (ii) if Parent does not prior to the earlier of (A) three (3) business days after Parent's receipt of the Notice of Superior Proposal or (B) if the Offer, as it may be extended, does not remain open for at least three (3) business days after Parent's receipt of the Notice of Superior Proposal, then such time period as does exist prior to the expiration of the Offer and before any acceptance for payment of any Shares, make an offer that the Company Board determines, in its good faith judgment (after consulting with its financial advisor) to be at least as favorable to the Company's stockholders as such Superior Proposal. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction or otherwise in order to comply with its fiduciary duties under applicable Law or Rule 14d-9 or 14e-2 will not constitute a violation of this Section 3.3Agreement.
(d) A "Competing Transaction" means any of the following (other than the Transactions): (i) any merger, a Shareholder who is also a director consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or officer other similar transaction involving the Company or any Subsidiary; (ii) any sale, lease, exchange, transfer or other disposition of all or substantially all of the assets of the Company may take or of any Subsidiary; (iii) any sale, exchange, transfer or other disposition in which the Company or any Subsidiary participates (including taking any action in his capacity as such (including complying to comply with or exercising his fiduciary duties as a member Section 203 of the Board of Directors DGCL, but excluding typical stock transfer functions) and which results in any person beneficially owning more than 25% of the Company) as is not limited by the terms outstanding securities of any class of equity securities of the Merger AgreementCompany or of any Subsidiary; or (iv) any tender offer or exchange offer that, if consummated, would result in any person beneficially owning more than 25% of the outstanding securities of any class of equity securities of the Company or of any Subsidiary.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Baycorp Holdings LTD)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from neither it nor the date Subsidiary nor any of this Agreement until the Termination Datedirectors, officers or employees of it or the Shareholder shall notSubsidiary will, and that it will cause its and the Subsidiary's agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or the Subsidiary) not to, directly or indirectly, nor(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 (as defined below), or (ii) enter into or maintain or continue discussions or negotiations with any person or entity in case the Shareholder is furtherance of such inquiries or to obtain a corporation proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other entitycontract, shall it agreement or commitment contemplating or otherwise relating to any Competing Transaction, or (iv) authorize or permit any of its directorsthe officers, officers directors or employees of the Company or the Subsidiary, or any investment banker, financial advisor, attorney, accountant or other representative retained by it the Company or any of its Subsidiaries (collectivelythe Subsidiary, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or to take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parentaction. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 hoursone (1) notify Parent day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder Company shall provide Parent with 24 hours prior notice (or such lesser prior notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board 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. Notwithstanding The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the provisions Company also agrees to promptly request each person that has heretofore executed a confidentiality agreement in connection with its consideration of this Section 3.3acquiring (whether by merger, a Shareholder who is also a director acquisition of stock or officer 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 may take any action in his capacity as or the Subsidiary and, if requested by Parent, to enforce such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementperson's obligation to do so.
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject (a) Subject to the last sentence provisions of this Section 3.34.5(b) and (c), below, the Company agrees that from neither it nor the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit Company Subsidiaries nor any of its the directors, officers or employees of it or the Company Subsidiaries will, and that it will use commercially reasonable efforts to cause its and the Company Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectivelythe Company Subsidiaries), the "REPRESENTATIVES") not to, directly or indirectly, (i) solicit, initiate or encourage (including by means 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(including, without limitation, any proposal or offer to its shareholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger AgreementSection 4.5(d), below), or (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse any Competing Transaction, or (iv) authorize or permit any of the officers, directors or employees of the Company or the Company Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other than with Parent representative retained by the Company or an affiliate of Parentthe Company Subsidiaries, to take any such action. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 hoursone (1) notify Parent day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contactcontact with any Person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder 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) of any meeting of the Board of Directors of the Company at which the Board of Directors of the Company 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. Notwithstanding The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the provisions Company also agrees to promptly request each person that has heretofore executed a confidentiality agreement in connection with its consideration of this Section 3.3acquiring (whether by merger, a Shareholder who is also a director acquisition of stock or officer assets or otherwise) the Company or the Company Subsidiaries, 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 may take any action or the Company Subsidiaries and, if requested by Parent, to enforce such person’s obligation to do so.
(b) Notwithstanding anything to the contrary in his capacity as such (including complying with or exercising his fiduciary duties as a member of this Section 4.5, the Board of Directors of the Company 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 if, in each such case, the Board of Directors of the Company has (i) determined, in its good faith judgment, after consultation with a financial advisor of internationally recognized reputation and independent legal counsel, that such proposal or offer constitutes a Superior Proposal (as defined below), and (ii) determined, in its good faith judgment, after consultation with independent legal counsel (who may be the Company’s regularly engaged independent 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 shareholders under applicable Legal Requirements, (iii) provided written notice to Parent 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 (iv) obtained from such Person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the confidentiality agreement between the Company and Parent (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).
(c) Except as is not limited set forth in this Section 4.5(c), neither the Board of Directors of the Company nor any committee thereof shall withdraw or modify or propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval or recommendation by the terms Board of Directors of the Merger Company or any such committee of this Agreement, the Merger, or any other transaction contemplated hereby (such withdraw, modification, or proposal being a “Change in the Company 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 Board of Directors of the Company determines, in its good faith judgment prior to the Company Shareholders’ Meeting and after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that it is required to make a Change in the Company Recommendation to comply with its fiduciary obligations to the Company and its shareholders under applicable Legal Requirements, the Board of Directors of the Company may make a Change in the Company Recommendation, but only (i) after providing written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Board of Directors of the Company 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 Board of Directors of the Company intends to effect a Change in the Company Recommendation and the manner in which it intends (or may intend) to do so, (ii) if Parent does not, within five (5) business days of Parent’s receipt of the Notice of Superior Proposal, make an offer that the Board of Directors of the Company determines, in its good faith judgment (after consultation with a financial advisor of internationally recognized reputation and independent legal counsel) to be at least as favorable to the Company’s shareholders as such Superior Proposal and (iii) to terminate this Agreement in accordance with Section 9.1(h). Any disclosure that the Board of Directors of the Company may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction or otherwise in order to comply with its fiduciary obligations to the Company and its shareholders under applicable Legal Requirements will not constitute a violation of this Agreement.
Appears in 1 contract
No Solicitation of Transactions. The Shareholder(a) Each party to this Agreement agrees that, subject to the last sentence of this Section 3.3, agrees that from and after the date hereof until the earlier of the Effective Time and the termination of this Agreement until the Termination Datepursuant to Article VIII, the Shareholder it shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, and shall it authorize or not permit any of its Subsidiaries or any of its or its Subsidiaries' directors, officers or employees or any to, and shall use its best efforts to cause its investment bankerbankers, financial advisorattorneys, attorney, accountant or accountants and other representative representatives retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") not to, directly or indirectly, : (i) solicit, initiate or knowingly encourage (including by means way of furnishing nonpublic information), or take any other action knowingly to facilitate, any inquiries or the making of any proposal or offer with respect to(including, or that reasonably may be expected to lead to a without limitation, any proposal or offer for, any to its stockholders) that constitutes a Competing Transaction (as defined in the Merger Agreementbelow), or ; (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction; (iii) agree to, approve, endorse or agree recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse any Competing Transaction; or (iv) authorize or permit any of the officers, directors or employees of such party or any of its Subsidiaries, or any investment banker, financial 58 advisor, attorney, accountant or other than with Parent or an affiliate of Parentrepresentative retained by such party, to take any such action. The Shareholder Each party to this Agreement shall notify the other party as promptly as practicable (but and in any event within 24 hoursone day after such party attains knowledge thereof) notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder Each party to this Agreement immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Each party to this Agreement shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the provisions of contrary in this Section 3.36.04, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of Parent or the Company, as the case may be, may furnish, prior to approval of this Agreement, the Merger, the Share Issuance, the Parent Name Change, the New Stock Option Plans Adoption and the Parent Board Appointments at the Company Stockholders' Meeting or the Parent Shareholders' Meeting, as the case may be, information to, and enter into discussions with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction or otherwise facilitate any effort or attempt to make or implement a proposal or offer for a Competing Transaction, if such Board of Directors has (i) determined, in its good faith judgment (after having consulted with a financial advisor of internationally recognized reputation) that such proposal or offer is reasonably likely to lead to a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consultation with independent legal counsel (who may be such party's regularly engaged independent legal counsel), that, in light of such proposal or offer regarding a Competing Transaction, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to Parent and its shareholders or the Company and its stockholders, respectively, under applicable Law, (iii) provided written notice to the other party of its intent to furnish information or enter into discussions with such person at least 24 hours prior to taking any such action, and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the other party than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not limited include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting such party from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 6.04(c), the Company Board shall not make a change in the Company Board Recommendation (a "CHANGE IN THE COMPANY BOARD RECOMMENDATION") in a manner adverse to Parent or Merger Sub 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, prior to the approval of this Agreement and the Merger at the Company Stockholders' Meeting, the Company Board determines, in its good faith judgment prior to the Effective Time and after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), that it is required to make a Change in the Company Board Recommendation to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, the Company Board may recommend a Superior Proposal, but only (i) after providing written notice to Parent (a "NOTICE OF COMPANY SUPERIOR PROPOSAL") advising Parent that the Company 59 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 Board Recommendation and the manner in which it intends (or may intend) to do so, and (ii) if Parent does not, within 48 hours of Parent's receipt of the Notice of Company Superior Proposal, deliver to the Company a binding, written offer that the Company Board determines, in its good faith judgment (after having consulted with independent legal counsel and a financial advisor of internationally recognized reputation) to be at least as favorable to the Company's stockholders as such Superior Proposal. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction under applicable Law or Rule 14d-9 or 14e-2 or that the Company Board determines to comply with its fiduciary duties to the Company and its stockholders will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the terms Company Board in violation of this Section 6.04(c). The obligation of the Company to call, give notice of, convene and hold the Company Stockholders' Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Company Board Recommendation, except in the event that this Agreement is terminated in accordance with Section 8.01(j). The Company shall not submit to the vote of its stockholders any Competing Transaction, or propose to do so, except in the event that this Agreement is terminated in accordance with Section 8.01(j).
(d) Except as set forth in this Section 6.04(d), the Parent Board shall not make a change in the Parent Board Recommendation (a "CHANGE IN THE PARENT BOARD RECOMMENDATION") in a manner adverse to the Company or approve or recommend, or cause or permit Parent to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction. Notwithstanding the foregoing, if, prior to the approval of the Share Issuance, the Parent Name Change, the New Stock Option Plans Adoption and the Parent Board Appointments at the Parent Shareholders' Meeting, the Parent Board determines, in its good faith judgment prior to the Effective Time and after consultation with independent legal counsel (who may be Parent's regularly engaged independent legal counsel), that to make a Change in the Parent Board Recommendation is required to comply with its fiduciary obligations to Parent and its shareholders under applicable Law, the Parent Board may recommend a Superior Proposal, but only (i) after providing written notice to the Company (a "NOTICE OF PARENT SUPERIOR PROPOSAL") advising the Company that the Parent 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 Parent Board intends to effect a Change in the Parent Board Recommendation and the manner in which it intends (or may intend) to do so, and (ii) if the Company does not, within 48 hours of the Company's receipt of the Notice of Parent Superior Proposal, deliver to Parent a binding written offer that the Parent Board determines, in its good faith judgment (after having consulted with independent legal counsel and a financial advisor of internationally recognized reputation) to be at least as favorable to Parent's shareholders as such Superior Proposal. Any disclosure that the Parent Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction under applicable Law (including, without limitation, the Singapore Code of Take-overs and Mergers) or Rule 14d-9 or 14e-2 or the requirements of the Securities Industry Counsel or that the Parent Board determines to comply with its fiduciary duties to Parent and its shareholders will not constitute a violation of this Agreement, provided that such disclosure 60 states that no action will be taken by the Parent Board in violation of this Section 6.04(d). The obligation of Parent to call, give notice of, convene and hold the Parent Shareholders' Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Parent Board Recommendation, except in the event that this Agreement is terminated in accordance with Section 8.01(k). Parent shall not submit to the vote of its shareholders any Competing Transaction, or propose to do so, except in the event that this Agreement is terminated in accordance with Section 8.01(k).
(e) A "COMPETING TRANSACTION" means with respect to the Company or Parent, as the case may be, any of the following (other than the Transactions): (i) a transaction, whether a merger, purchase of assets, tender offer or otherwise, which, if consummated, would result in a third party's acquiring (A) more than 20% of the equity securities of the Company or of Parent, as the case may be, (B) all or substantially all of the assets of the Company and the Company Subsidiaries, taken as a whole, or of Parent and the Parent Subsidiaries, taken as a whole, or (C) is conditioned upon the non-consummation of the Transactions; (ii) in the case of the Company, any solicitation in opposition to approval and adoption of this Agreement by the Company's stockholders; and (iii) in the case of Parent, any solicitation in opposition to approval of the Share Issuance, Parent Name Change, the New Stock Option Plans Adoption or the Parent Board Appointments by Parent's shareholders.
(f) A "SUPERIOR PROPOSAL" means with respect to the Company or Parent, as the case may be, an unsolicited bona fide offer made by a third party which (i) is for a transaction, whether a merger, purchase of assets, tender offer or otherwise, other than the Transactions, which, if consummated, would result in (A) the stockholders of such party immediately preceding such transaction holding less than 50% of the equity interest in the surviving or resulting entity of such transaction or (B) a third party's acquiring all or substantially all of the assets of the Company and the Company Subsidiaries, taken as a whole, or Parent and the Parent Subsidiaries, taken as a whole, as the case may be, and (ii) is on terms that the Board of Directors of such party determines, in its good faith judgment (after having consulted with independent legal counsel and a financial advisor of internationally recognized reputation), taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, (A) if consummated pursuant to its terms, is reasonably likely to result in a transaction that is more favorable to the stockholders of such party (in their capacities as stockholders), from a financial point of view, than the Merger Agreementand (B) is reasonably capable of being completed on the terms proposed.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Citigroup Inc)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder Company shall not, directly or indirectly, norand shall instruct its officers, in case the Shareholder is a corporation directors, employees, subsidiaries, agents or advisors or other entityrepresentatives (including, shall it authorize or permit any of its directorswithout limitation, officers or employees or any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectivelyit), the "REPRESENTATIVES") not to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementbelow), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of its officers, directors or employees or any Subsidiary, or any investment banker, financial advisor, attorney, accountant or other than with Parent representative retained by it or an affiliate of Parentany Subsidiary, to take any such action. The Shareholder Company shall promptly (but in any event within 24 hours) notify Parent promptly if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, made and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered describe to Parent a copy in reasonable detail the terms and conditions of such offer or proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. Notwithstanding anything to the provisions of contrary in this Section 3.35.04, the Company Board may furnish information to, and enter into discussions with, a Shareholder person who is also has made an unsolicited, written proposal or offer regarding a director or officer of Competing Transaction, and the Company may take any action in his capacity as such Board has (including complying i) reasonably concluded after consultation with or exercising his fiduciary duties as a member of the Board of Directors of the Company's Financial Advisor or any successor thereto that such proposal or offer was made in good faith and is reasonably likely, if negotiated, to lead to a Superior Proposal (as defined below), (ii) as is not limited by provided written notice to Parent of its intent to furnish information or enter into discussions with such person at least 48 hours prior to taking any such action and (iii) obtained from such person an executed confidentiality agreement on terms no less favorable to the terms of Company than those contained in the Merger Confidentiality Agreement.
Appears in 1 contract
No Solicitation of Transactions. The ShareholderSelling Companies and the Majority Shareholders agree that, subject to the last sentence as of this Section 3.3, agrees that from the date of this Agreement until the Termination DateAgreement, the Shareholder shall notthey have, directly and have caused each officer, director or indirectlyemployee of, noror any investment banker, in case the Shareholder is a corporation attorney or other entityadvisor or representative of STS and its Subsidiaries to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted prior to the date hereof with respect to any Competing Transaction (as defined below). Neither the Majority Shareholders nor STS shall permit STS or any of the Selling Companies to, nor shall it authorize or permit any of its directorsofficer, officers director or employees employee of, or any investment banker, financial advisor, attorney, accountant attorney or other advisor or representative retained by it of, STS or any of its Subsidiaries the Selling Companies to (collectivelyi) solicit or initiate, the "REPRESENTATIVES") toencourage, or facilitate, directly or indirectly, solicitany inquiries relating to, initiate or encourage the submission of, any proposal or offer, whether in writing or otherwise, from any Person other than Parent, Newco or any Affiliates thereof (including by means a “Third Party”) to acquire equity of furnishing nonpublic informationSTS or any of the assets of STS or any of the Selling Companies pursuant to a merger, consolidation or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, (a “Competing Transaction”); (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information or data with respect to or access to the properties of, or take any other action to facilitate, any inquiries or knowingly facilitate the making of any proposal or offer with respect tothat constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction Transaction; or (as defined in the Merger Agreement), or iii) enter into or maintain or continue discussions or negotiate any agreement with any person or entity in furtherance of such inquiries or respect to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent approve or an affiliate of Parent. The Shareholder shall promptly (but in recommend or resolve to approve or recommend any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeor enter into any agreement requiring it to abandon, terminate or fail to consummate the Purchase and the Shareholder other transactions contemplated by this Agreement. Nothing contained on the Agreement shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of prevent the Board of Directors of the Company) from making any disclosure to STS’ Shareholders as is not limited required by the terms of the Merger Agreementapplicable law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Iowa Telecommunications Services Inc)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from From the date of this Agreement and until the Termination DateClosing or until the earlier termination of this Agreement:
(a) The Company agrees that neither it nor any Subsidiary nor any of the directors, the Shareholder shall notofficers 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, nor(i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to 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 reasonably be expected to lead to, any Competing Transaction (as defined below), or (ii) enter into or maintain or continue discussions or negotiations with any person or entity in case the Shareholder is furtherance of such inquiries or to obtain a corporation proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other entitycontract, shall it agreement or commitment contemplating or otherwise relating to any Competing Transaction, or (iv) authorize or permit any of its directorsthe officers, 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 it the Company or any of its Subsidiaries (collectivelySubsidiaries, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or to take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parentaction. The Shareholder Company shall notify Purchaser as promptly as practicable (but and in any event within 24 hoursone (1) notify Parent day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, proposal or offer, or inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent and shall provide a copy of all written materials provided in connection therewith. After receipt by the Company of any such proposalproposal or offer or inquiry or contact, the Company shall promptly keep Purchaser informed of the status and details (including material amendments or proposed material amendments) of any such proposal or offer, or inquiry or contact and any other shall promptly provide Purchaser a copy of all written material reasonably relating theretomaterials subsequently provided in connection therewith. The Shareholder Company shall provide Purchaser with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Board) of any meeting of the Board at which the Board 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the contrary in this Section 7.10, 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, provided the Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation), that such proposal or offer constitutes a Superior Proposal (as defined below), (ii) determined, in its good faith judgment upon the receipt of advice of independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that, in light of such Superior Proposal, furnishing 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 Purchaser of its intent to furnish information or enter into discussions with such person at least 24 hours prior to taking any such action, and (iv) obtained from such person an executed confidentiality agreement on terms that are customary for such a transaction (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.
(c) Except as set forth in this Section 7.10(c), neither the Board nor any committee thereof shall 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 provisions foregoing, if the Board determines, in its good faith judgment prior to the time of Closing and upon receipt of advice of independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that it is required to do so to comply with its fiduciary obligations to the Company and its stockholders under applicable law, the Board may recommend a Superior Proposal, but only (i) after providing written notice to Purchaser (a “Notice of Superior Proposal”) advising Purchaser that the 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 Board intends to approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, such Competing Transaction and the manner in which it intends (or may intend) to do so, and (ii) if Purchaser does not, within forty-eight (48) hours of Purchaser’s receipt of the Notice of Superior Proposal, make an offer that the Board determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation) to be at least as favorable to the Company’s stockholders as such Superior Proposal. From the time of Purchaser’s receipt of the Notice of Superior Proposal until the end of such 48-hour period, the Company shall, if requested by Purchaser, negotiate in good faith with Purchaser to revise this Agreement so that the Competing Transaction that constituted a Superior Proposal no longer constitutes a Superior Proposal. Any disclosure that the Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction or otherwise in order to comply with its fiduciary obligations to the Company and its stockholders under applicable Law or Rule 14d-9 or 14e-2 will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the Board in violation of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement7.10(c).
Appears in 1 contract
Samples: Purchase Agreement (Bowater Inc)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the (a) Each Shareholder shall not, directly or indirectlyand shall cause its shareholders, normembers, in case the Shareholder is a corporation partners, affiliates, officers, directors, trustees, employees, agents, advisors or other entityrepresentatives (including, shall it authorize or permit without limitation, any of its directors, officers or employees or any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries it) (collectively, the "REPRESENTATIVESShareholder Representatives") not to, directly or indirectly, between the date of this Agreement and the date of termination of the Merger Agreement, take any action to solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or facilitate the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its shareholders or other shareholders of the Company) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Acquisition Proposal or potential Acquisition Proposal, or enter into any inquiry with respect thereto, or maintain or continue discussions or negotiate in connection with any Acquisition Proposal or potential Acquisition Proposal, disclose any 6 nonpublic information relating to the Company or the Company Subsidiaries or afford access to the properties, books or records of the Company or the Company Subsidiaries to any person or entity in furtherance of such inquiries that has made, or to obtain such person's knowledge, is considering making an Acquisition Proposal. Any violation of the foregoing restrictions by any of the Shareholder Representatives, whether or not such person is so authorized and whether or not any such person is purporting to act on behalf of any of the Shareholders or otherwise shall be deemed to be a Competing Transactionbreach of this Agreement by the applicable Shareholder.
(b) Upon receiving an Acquisition Proposal, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The each Shareholder shall promptly (but 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 event within 24 hours) notify Parent if any proposal or offerpreviously received Acquisition Proposal, or any inquiry request for nonpublic information relating to the Company or contactany Company Subsidiary or for access to the properties, constituting books or regarding a Competing Transaction is records of the Company or Company any Company Subsidiary by any person that has made, or to such party's knowledge may be considering making, an Acquisition Proposal, and the Shareholder shall promptly inform Parent as to the material details provide copies of any proposals, indications of interest, draft agreements and correspondence relating to such proposalAcquisition Proposal. Each Shareholder shall, offerand shall cause its respective Shareholder Representatives to, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated terminated, all existing discussions or negotiations and negotiations, if any, that have taken place prior to the date hereof with any parties conducted heretofore persons with respect to a Competing Transaction. Notwithstanding any Acquisition Proposal and shall request the provisions return or destruction of all confidential information provided to any such person.
(c) Each Shareholder agrees that it shall take the necessary steps promptly to inform its respective Shareholder Representatives of the obligations undertaken in this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement4.03.
Appears in 1 contract
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date neither it nor any Subsidiary nor any Representative of this Agreement until the Termination Date, the Shareholder shall notit or any Subsidiary will, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"i) to, directly or indirectly, solicit, initiate or encourage (including by means way of furnishing nonpublic information), or take any other action to facilitatefor the purpose of facilitating, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementbelow), or (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance for the purpose of facilitating such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment providing for or otherwise relating to or endorse any Competing Transaction, other than with Parent or an affiliate (iv) authorize or permit any Representative of Parentthe Company or any of its Subsidiaries to take any such action. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 twenty-four (24) hours) notify Parent if after the Company receives any oral or written proposal or offer, offer or any inquiry or contact, constituting contact with any person regarding a potential proposal or offer regarding a Competing Transaction is madeTransaction, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer (including material amendments or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written proposed material reasonably relating theretoamendments). The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the contrary in this Section 6.05, the Company Board may furnish information to, and enter into discussions with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Company Board has (i) determined, in its good faith judgment (after consulting with its financial advisor), that such proposal or offer constitutes or could lead to a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consulting with its outside legal counsel (who may be the Company's regularly engaged outside legal counsel), that, in light of such proposal or offer, the failure to furnish such information or enter into discussions would be inconsistent with its fiduciary duties under applicable Law, (iii) provided written notice to Parent of its intent to furnish information or enter into discussions with such person prior to taking any such action and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 6.05(c), neither the Company Board nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Company Board or any such committee of this Agreement, the Offer, the Merger or any other Transaction (a "Change in the Company 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 (except for a confidentiality agreement as provided in Section 6.05(b) above). Notwithstanding the provisions foregoing, if the Company Board determines, in its good faith judgment prior to the time of the acceptance for payment of Shares pursuant to the Offer and after consulting with outside legal counsel (who may be the Company's regularly engaged outside legal counsel), that the failure to make a Change in the Company Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Company Board may make a Change in the Company Recommendation and/or recommend a Superior Proposal, but only (i) after providing written notice to Parent (a "Notice of Superior Proposal") advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation and (ii) if Parent does not prior to the earlier of (A) three (3) business days after Parent's receipt of the Notice of Superior Proposal or (B) if the Offer, as it may be extended, does not remain open for at least three (3) business days after Parent's receipt of the Notice of Superior Proposal, then such time period as does exist prior to the expiration of the Offer and before any acceptance for payment of any Shares, make an offer that the Company Board determines, in its good faith judgment (after consulting with its financial advisor) to be at least as favorable to the Company's stockholders as such Superior Proposal. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction or otherwise in order to comply with its fiduciary duties under applicable Law or Rule 14d-9 or 14e-2 will not constitute a violation of this Section 3.3Agreement.
(d) A "Competing Transaction" means any of the following (other than the Transactions): (i) any merger, a Shareholder who is also a director consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or officer other similar transaction involving the Company or any Subsidiary; (ii) any sale, lease, exchange, transfer or other disposition of all or substantially all of the assets of the Company may take or of any Subsidiary; (iii) any sale, exchange, transfer or other disposition in which the Company or any Subsidiary participates (including taking any action to comply with Section 203 of the DGCL, but excluding typical stock transfer functions) and which results in his capacity as such any person beneficially owning more than 25% of the outstanding securities of any class of equity securities of the Company or of any Subsidiary; or (iv) any tender offer or exchange offer that, if consummated, would result in any person beneficially owning more than 25% of the outstanding securities of any class of equity securities of the Company or of any Subsidiary.
(e) A "Superior Proposal" means an unsolicited written bona fide offer made by a third party with respect to a Competing Transaction (with all percentages contained in the definition of "Competing Transaction" increased to 50% for purposes of this definition), in each case on terms that the Company Board determines, in its good faith judgment (after consulting with its financial advisor) and taking into account all legal, financial, regulatory and other aspects of the offer that it deems relevant (including complying with or exercising his fiduciary duties as a member of whether the Board of Directors of person proposing such Competing Transaction is reasonably able to finance the Company) as is not limited by transaction), to be more favorable to the terms of Company stockholders than the Merger AgreementOffer and Merger.
Appears in 1 contract
No Solicitation of Transactions. The ShareholderFrom the date hereof until the earlier to occur of (1) the Effective Time and (2) the termination of the Merger Agreement for any reason (regardless of the circumstances (whether or not there is a dispute as to whether such termination was in accordance with the Merger Agreement)) (the "No Shop Term"), subject to the last sentence of this Section 3.3, each Stockholder agrees that from the date of this Agreement until the Termination Date, the Shareholder he shall not, directly or indirectly, northrough any officer, in case the Shareholder is a corporation director, agent or other entityotherwise, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"a) to, directly or indirectly, solicit, initiate or encourage solicit (including by means way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect tothat constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse any Competing Transaction, other than with Parent or an affiliate (iv) authorize or permit any agent of Parent. The Shareholder shall promptly (but in the Stockholder or any event within 24 hours) notify Parent if any proposal or offerof its Affiliates, or any inquiry investment banker, financial advisor, attorney, accountant or contactother representative retained by the Stockholder or any of its Affiliates, constituting to take any such action; provided, however, that nothing in this Section 3.02 shall prevent a Stockholder or regarding such Stockholder's representatives or agents, in any such person's capacity as a Competing Transaction is madedirector or executive officer of the Company from engaging in any activity permitted pursuant to Section 6.04 of the Merger Agreement. Unless the No Shop Term has expired, each Stockholder shall, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver direct or cause to be delivered to Parent a copy of such proposalStockholder's representatives and agents to, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore that may be ongoing with respect to a any Competing Transaction. Notwithstanding During the provisions of this Section 3.3No Shop Term, each Stockholder shall notify Parent as promptly as practicable (and in any event within one (1) day after the Stockholder attains knowledge thereof), orally and promptly thereafter in writing, if any proposal or offer, or any inquiry or contact with any person with respect thereto, regarding a Shareholder who Competing Transaction is also a director made, specifying the material terms and conditions (including material amendments or officer proposed material amendments) thereof and the identity of the Company may take any action in his capacity as party making such (including complying with proposal or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementoffer or inquiry or contact.
Appears in 1 contract
Samples: Company Shareholder Support Agreement (International Steel Group Inc)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall neither it authorize or permit nor any Company Subsidiary nor any of its the directors, officers or employees of it or any Company Subsidiary will, and that it will cause its and its Company Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectivelyCompany Subsidiary), the "REPRESENTATIVES") not to, directly or indirectly, (i) solicit, initiate or encourage (including by means 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(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse any Competing Transaction, or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Company Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other than with Parent representative retained by the Company or an affiliate any of Parentits Company Subsidiaries, to take any such action. The Shareholder Company shall notify Barington as promptly as practicable (but and in any event within 24 hoursone (1) notify Parent day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder Company shall provide Barington with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party 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 Company 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 Company Subsidiary and, if requested by Barington, to enforce such person’s obligation to do so.
(b) Notwithstanding anything to the contrary in this Section 6.04, the Company Board may furnish information to, and enter into discussions with, a person who, prior to the approval of this Agreement by the Company’s stockholders, has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction not solicited in violation of Section 6.04(a), and the Company Board has (i) determined, in its good faith judgment (after consultation with the Company’s independent legal counsel and the advice of a financial advisor of nationally recognized reputation), that such proposal or offer constitutes a Superior Proposal, (ii) determined, in its good faith judgment after consultation with independent legal counsel (who may be the Company’s regularly engaged independent 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 Barington of its intent to furnish information or enter into discussions with such person at least three (3) business days prior to taking any such action, and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 6.04(c), neither the Company Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to Barington, the Company Recommendation (a “Change in the Company 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 provisions foregoing, if the Company Board determines, in its good faith judgment prior to the time of the Company Stockholders’ Meeting and after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that it is required to make a Change in the Company Recommendation to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, the Company Board may recommend a Superior Proposal, but only (i) after providing written notice to Barington (a “Notice of Superior Proposal”) advising Barington 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, and (ii) if Barington does not, within five (5) business days of Barington’s receipt of the Notice of Superior Proposal, make an offer that the Company Board determines, in its good faith judgment (after consultation with the Company’s independent legal counsel and the advice of a financial advisor of nationally recognized reputation) to be at least as favorable to the Company’s stockholders as such Superior Proposal. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction or otherwise in order to comply with its fiduciary obligations to the Company and its stockholders under applicable Law or Rule 14d-9 or 14e-2 will not constitute a violation of this Agreement; provided that such disclosure states that no action will be taken by the Company Board in violation of this Section 3.36.04(c). Notwithstanding anything to the contrary contained in this Agreement, a Shareholder who is also a director or officer the obligation of the Company may take any action in his capacity as such (including complying with to call, give notice of, convene and hold the Company Stockholders’ Meeting shall not be limited or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited otherwise affected by the terms commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Merger AgreementCompany Recommendation. The Company shall not submit to the vote of its stockholders any Competing Transaction, or propose to do so.
Appears in 1 contract
Samples: Merger Agreement (Barington/Hilco Acquisition Corp.)
No Solicitation of Transactions. The ShareholderEach Restricted Stockholder, subject to the last sentence of this Section 3.3severally and not jointly, agrees that from between the date of this Agreement until and the Termination Dateearlier of (a) the Effective Time, or (b) the Shareholder shall nottermination of the Merger Agreement in accordance with its terms, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries such Restricted Stockholder will not (collectively, the "REPRESENTATIVES"y) to, directly or indirectly, solicit, initiate initiate, consider, encourage or encourage (including by means of furnishing nonpublic information)accept any other proposals or offers from any Person relating to any Competing Transaction, or take (z) participate in any discussions, conversations, negotiations and other communications regarding, or furnish to any other action to facilitate, Person any inquiries or the making of any proposal or offer information with respect to, or that reasonably may be expected otherwise cooperate in any way, assist or participate, in, facilitate or encourage any effort or attempt by any other Person to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain seek a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder Each Restricted Stockholder immediately shall cease and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any parties Persons conducted heretofore with respect to a Competing Transactionany of the foregoing. Notwithstanding anything to the provisions of contrary in this Section 3.3Agreement, a Shareholder who is also however, any Stockholder in his capacity as a director or officer of the Company may USE or Zapco shall be permitted (a) to take any action and participate in his capacity as such any discussions or negotiations permitted under Section 1 of the Termination Fee Agreement between USE, Zapco and CSI of even date and (including complying with or exercising b) to exercise his fiduciary duties if an unsolicited proposal concerning a Competing Transaction is received. Each Zapco Stockholder shall notify USE, and each USE Stockholder shall notify Zapco, in each case promptly if any such proposal or offer, or any inquiry or other contact with any Person with respect thereto, is made and shall, in any such notice to USE or Zapco, as a member the case may be, indicate in reasonable detail the identity of the Board of Directors of the Company) as is not limited by Person making such proposal, offer, inquiry or contact and the terms and conditions of the Merger Agreementsuch proposal, offer, inquiry or other contact.
Appears in 1 contract
Samples: Stockholders' and Voting Agreement (U S Energy Systems Inc)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from neither it nor any Company Subsidiary nor any of the date directors, officers or employees of this Agreement until it or any Company Subsidiary will, and that it will not authorize or permit its and the Termination DateCompany Subsidiaries’ agents, the Shareholder shall notadvisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary), to, directly or indirectly, nor(i) solicit (including by way of furnishing nonpublic information), or take any other action intended 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 constitutes, or may reasonably be expected to lead to, any Competing Transaction, or (ii) enter into or maintain or continue discussions or negotiations with any person or entity in case the Shareholder is furtherance of such inquiries or to obtain a corporation proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other entitycontract, shall it agreement or commitment contemplating or otherwise relating to any Competing Transaction, or (iv) authorize or permit any of its directorsthe officers, officers directors or employees of the Company or any of the Company Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by it the Company or any of its Subsidiaries (collectivelythe Company Subsidiaries, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or to take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parentaction. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 hoursone (1) notify Parent day after an executive officer of the Company attains knowledge thereof), orally and promptly thereafter in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, proposal or offer or inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder 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) of any meeting of the Company Board at which the Company Board is expected to discuss 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. Notwithstanding The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the provisions Company also agrees to promptly request each person that has heretofore executed a confidentiality agreement in connection with its consideration of this Section 3.3acquiring (whether by merger, a Shareholder who is also a director acquisition of stock or officer 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 to such person by or on behalf of the Company or any Company Subsidiary and, if requested by Parent, to enforce such person’s obligation to do so.
(b) Notwithstanding anything to the contrary in this Section 6.04, the Company Board may take furnish or cause to be furnished information to, and enter or cause to be entered into discussions with, a person who has made an unsolicited, written proposal or offer regarding a Competing Transaction, if the Company Board has (i) determined, in its good faith judgment (after consultation with a financial advisor), that such proposal or offer constitutes a Superior Proposal, (ii) provided written notice to Parent of its intent to furnish information to or enter into discussions with such person at least three business days prior to taking any such action and (iii) obtained from such person an executed confidentiality agreement on terms determined by the Company in his capacity good faith not to be substantially 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). The Company will use reasonable best efforts to keep Parent informed on a reasonably prompt basis of the status of any negotiations it enters into with any Person regarding a Superior Proposal, including any material amendments or proposed material amendments thereto. The Company will provide Parent with all information regarding the Company with which Parent has not previously been provided that is provided to any person making a Superior Proposal.
(c) Except as permitted by this Section 6.04(c), neither the Company Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Recommendation (a “Change in the Company 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 prior to the time of the Company Stockholders’ Meeting and after consultation with legal counsel (who may be the Company’s regularly engaged legal counsel), that it is required to make a Change in the Company Recommendation to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, the Company Board may (i) make a Change in the Company Recommendation or (ii) terminate this Agreement pursuant to Section 8.01(j), but only, in the case of this clause (ii), (A) after providing written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and indicating that the Company Board intends to consider whether to effect a Change in the Company Recommendation and (B) if Parent does not, within three (3) business days of Parent’s receipt of the Notice of Superior Proposal, make an offer that the Company Board determines at meeting of the Company Board held for such purpose, in its good faith judgment (after consultation with a financial advisor) to be at least as favorable to the Company’s stockholders as such Superior Proposal. No disclosure that the Company Board may determine in good faith (after consultation with counsel, who may be the Company’s regularly engaged counsel) that it or the Company is required to make under applicable Law will constitute a violation of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the obligation of the Company to call, give notice of, convene and hold the Company Stockholders’ Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Company Recommendation. The Company shall not submit to the vote of its stockholders any Competing Transaction, or propose to do so, except as permitted herein.
(d) A “Competing Transaction” means any of the following (other than the Transactions): (i) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any Material Company Subsidiary; (ii) any sale, lease, exchange, transfer or other disposition (including complying with a disposition of stock of one or exercising his fiduciary duties more Company Subsidiaries) of 15% or more of the assets of the Company and the Company Subsidiaries taken as a member whole; (iii) any sale, exchange, transfer or other disposition of 15% or more of any class of equity securities of the Board Company or any Material Company Subsidiary; (iv) any tender offer or exchange offer that, if consummated, would result in any person beneficially owning 15% or more of Directors any class of equity securities of the Company; (v) as is not limited any solicitation in opposition to adoption of this Agreement by the terms Company’s stockholders or (vi) any other transaction the consummation of which would reasonably be expected to prevent or materially delay any of the Merger AgreementTransactions.
Appears in 1 contract
No Solicitation of Transactions. The Shareholder(a) Immediately after the Agreement Date, subject to the last sentence other provisions of this Section 3.34.4, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees, and shall instruct and use reasonable best efforts to cause its other Company Representatives to, cease and cause to be terminated any discussions or negotiations with any Person that may be ongoing with respect to an Acquisition Proposal, and shall immediately terminate “data room” Table of Contents access to such Persons. The Company shall promptly (and in any event within two Business Days of the Agreement Date) deliver a written notice to each such Person to the effect that the Company is ending all such solicitations, communications, activities, discussions or negotiations with such Person, effective on the Agreement Date, which written notice shall also instruct each Person to promptly return or destroy all non-public information previously furnished to such Person or any Company Representatives by or on behalf of the Company or any of its Subsidiaries. Without limiting the foregoing, it is agreed that any violation or breach of the restrictions or obligations set forth in this Section 4.4 by any Subsidiary of the Company or any Company Representative of the Company or any of its Subsidiaries acting on behalf of or at the direction of the Company or any of its Subsidiaries shall be deemed to be a breach of Section 4.4 by the Company.
(b) Except as permitted by this Section 4.4, the Company agrees that from the date of this Agreement until the Termination Date, the Shareholder it shall not, and shall cause its Subsidiaries and its and their respective directors, officers and employees not to, and the Company shall not authorize or instruct any Company Representatives to, and shall use its reasonable best efforts to cause any other Company Representative not to, directly or indirectly:
(i) initiate, norsolicit or knowingly facilitate or encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry or otherwise knowingly assist or participate in case the Shareholder is a corporation making, submission or announcement of any Acquisition Proposal;
(ii) engage in, participate or continue discussions or negotiations with any Person with respect to an Acquisition Proposal or Acquisition Inquiry (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 4.4 in response to the receipt of an Acquisition Proposal or Acquisition Inquiry or clarifying the terms of any such Acquisition Proposal or Acquisition Inquiry);
(iii) 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 or other entitysimilar agreement constituting or relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”) or enter into any Contract or agreement requiring the Company to abandon, shall it authorize terminate or permit fail to consummate the Transactions;
(iv) terminate, waive, amend or modify any provision of, or grant permission under, any confidentiality agreement to which the Company or any of its directorsSubsidiaries is a party and that contains a “standstill” provision;
(v) furnish to any Person (other than to Parent, officers or employees Merger Sub or any investment bankerdesignees of Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries or afford to any Person access to the business, financial advisorproperties, attorneyassets, accountant books, records or other representative retained by it non-public information, or to any personnel, of the Company or any of its Subsidiaries (collectivelyother than Parent, the "REPRESENTATIVES") to, directly Merger Sub or indirectly, solicit, initiate any designees of Parent or encourage (including by means of furnishing nonpublic informationMerger Sub), in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, any Acquisition Proposal or Acquisition Inquiry;
(vi) take any other action to facilitate, any inquiries or make the making provisions of any proposal or offer with respect toTakeover Law, or that reasonably may be expected any restrictive provision of the Company Organization Documents inapplicable to lead to a proposal any Acquisition Proposal or offer for, any Competing Transaction Person making an Acquisition Proposal; or
(as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, vii) resolve or agree to or endorse take any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementforegoing actions.
Appears in 1 contract
Samples: Merger Agreement (Shutterfly Inc)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, Shareholder agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"“Representatives”) to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect that constitutes, or may reasonably be likely to lead to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction Takeover Proposal (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing TransactionTakeover Proposal, or agree to or endorse any Competing TransactionTakeover Proposal, or authorize or permit any of its Representatives to take any such action, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) immediately notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction Takeover Proposal is made, and the Shareholder shall promptly immediately inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger AgreementTakeover Proposal.
Appears in 1 contract
Samples: Shareholder Agreement (Sanchez Computer Associates Inc)
No Solicitation of Transactions. The Shareholder, subject to From the last sentence date hereof and until the earlier of the Closing Date or termination of this Section 3.3Agreement, agrees that from each Seller and the date Special Fiduciary and Trustee shall not take, nor shall it permit any of this Agreement until the Termination Dateits Representatives, the Shareholder shall notAffiliates or Associates to take, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, action to solicit, initiate negotiate, assist or otherwise facilitate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer confidential information with respect to, to the Business of the Company or that reasonably may be expected permitting access to lead to a proposal the Assets and Properties or offer for, Books and Records of the Company) any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contactrequest for information from any Person concerning the direct or indirect acquisition of the Business of the Company or any of the Assets and Properties of the Company by any Person (an “Alternate Transaction”) other than Purchaser. If a Seller or the Special Fiduciary and Trustee or any of their Representatives, including Affiliates or Associates receives from any Person any such offer, proposal, inquiry or request for information, such Seller or the Special Fiduciary and Trustee shall promptly advise such Person, by written notice, of the terms of this Section 6.04 and shall immediately, orally and in writing, advise Purchaser of such offer, proposal, inquiry or request and deliver a copy of such notice to Purchaser. Any violation of the restrictions set forth in this Section 6.04 by any Representative, Affiliate or Associate of a Seller or the Special Fiduciary and Trustee shall be deemed to be a breach of this Section 6.04 by such Seller or the Special Fiduciary and Trustee. Any notice required to be delivered pursuant to this Section 6.04 shall include the identity of the party Person making any such offer, proposal, inquiry request, and the terms of such offer, proposal, inquiry or contactrequest, andand shall keep Purchaser apprised, if in writingon a current basis, promptly deliver or cause to be delivered to Parent a copy of the status of such offer, proposal, offer, inquiry or contact request. Each Seller and any other written material reasonably relating thereto. The Shareholder the Special Fiduciary and Trustee shall immediately shall cease and cause to be terminated (and each Seller and the Special Fiduciary and Trustee hereby represents and warrants that it has the legal and contractual right, without liability of any sort, to cease and cause to be terminated) all existing discussions or negotiations with any parties Persons conducted heretofore with respect to any such offer, proposal, inquiry or request. Each Seller and the Special Fiduciary and Trustee shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which such third party is a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementparty.
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from (a) From the date of this Agreement until the Termination Dateconsummation of the last Deferred Closing, the Shareholder Seller shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, and shall it not authorize or permit any of its their officers, directors, officers members partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to“Representatives”), directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by means way of furnishing nonpublic information)) any inquiries, proposals or take offers or any other action efforts or attempts that constitute or that reasonably may be expected to facilitatelead to, any inquiries or the making of (ii) initiate or participate in any proposal discussions or offer with respect tonegotiations regarding, or that reasonably may be expected to lead to, an Acquisition Proposal or approve or recommend, or propose to a proposal approve or offer forrecommend, any Competing Transaction (as defined in the Merger Agreement), an Acquisition Proposal or enter into any Acquisition Agreement or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transactionresolve, propose or agree to or endorse do any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making foregoing. Without limiting the foregoing, Seller shall be responsible for any such proposalfailure on the part of its Representatives to comply with this Section 5.7.
(b) Upon execution of this Agreement, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately Seller shall cease immediately and cause to be terminated any and all existing discussions activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions an Acquisition Proposal by or on behalf of this Section 3.3, a Shareholder who is also a director Seller or officer any of the Company may take any action in his capacity as such Representatives. Seller shall use its reasonable commercial efforts to cause (including complying by written request) each Person with whom it has executed a confidentiality agreement within the 24 months prior to the date hereof in connection with its consideration of any Acquisition Proposal to return or exercising his fiduciary duties as a member destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of Seller or any of the Board of Directors of the Company) as is not limited by the terms of the Merger AgreementRepresentatives.
Appears in 1 contract
Samples: Merger Agreement (American Campus Communities Operating Partnership LP)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, (a) Parent agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall neither it authorize or permit nor any of its directorsRepresentatives shall, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by and that it or any shall cause each of its Subsidiaries (collectively, the "REPRESENTATIVES") Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by means 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, or that reasonably may be expected to lead to a (including any proposal or offer forto Parent’s stockholders), with respect to any Competing Transaction Parent Transaction; (as defined ii) enter into, maintain, continue or otherwise engage or participate in the Merger Agreement), or enter into or maintain or continue any discussions or negotiate negotiations with any person Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Parent Transaction; (iii) agree to, approve, endorse, recommend or consummate any Competing Parent Transaction; (iv) enter into any Competing Parent Transaction Agreement; (v) take any action to approve a third party becoming an “interested shareholder”, or agree to approve any transaction, for purposes of Section 13.1-725 of the Virginia Stock Corporation Act; or endorse (vi) resolve, propose or agree, or authorize or permit any Competing TransactionRepresentative, other than with to do any of the foregoing. Parent acknowledges and agrees that the doing of any of the foregoing by Parent or an affiliate any of Parentits Representatives shall be deemed to be a breach by Parent of this Section 7.03(a). The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeshall, and the Shareholder shall promptly inform Parent as to the material details of any such proposalcause its Representatives to, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties Persons (other than TDCC and its Affiliates) conducted heretofore prior to the execution of this Agreement by Parent or any of its Representatives with respect to a Competing Parent Transaction. Notwithstanding Parent shall not, and shall not permit any of its Representatives to, release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it or one of its Affiliates is a party in connection with a Competing Parent Transaction. Parent shall promptly request each Person (other than TDCC and its Affiliates) that has heretofore executed a confidentiality agreement with Parent in connection with such Person’s consideration of a Competing Parent Transaction (whether by merger, acquisition of stock or assets or otherwise), to return (or if permitted by the provisions of this Section 3.3applicable confidentiality agreement, a Shareholder who is also a director or officer of the Company may take any action in his capacity as destroy) all information required to be returned (or, if applicable, destroyed) by such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by Person under the terms of the Merger applicable confidentiality agreement and, if requested by Parent, to enforce such Person’s obligation to do so.
(b) Parent shall promptly (and in any event within 24 hours after Parent attains knowledge thereof) notify TDCC, orally and in writing, after the receipt by Parent or any of its Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Parent Transaction, including any request for discussions or negotiations and any request for information relating to Parent or any of its Affiliates or for access to the business, properties, assets, books or records of Parent or any of 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 the terms and conditions (if any) of such proposed Competing Parent Transaction, and Parent shall promptly (and in any event within 24 hours after receipt by Parent) provide to TDCC copies of any written materials received by Parent in connection with any of the foregoing. Parent agrees that it shall keep TDCC reasonably informed of the 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 Parent pursuant to Section 7.03(c). Parent shall provide TDCC with at least 48 hours prior notice of any meeting of the Parent Board at which the Parent Board is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Parent Board in respect of such meeting). Parent agrees that it shall substantially simultaneously provide to TDCC any nonpublic information concerning Parent that may be made available pursuant to Section 7.03(c) to any other Person in response to any such proposal, inquiry, offer or request (or any amendment thereto) unless such information has previously been provided or made available by Parent to TDCC.
(c) Notwithstanding anything to the contrary in this Section 7.03, at any time prior to the receipt of the Parent Stockholder Approval, Parent may furnish information to, and enter into discussions and negotiations with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Parent Transaction that did not arise or result from any breach of this Section 7.03 if, prior to furnishing such information and entering into such discussions, the Parent Board has (i) determined, in its good faith judgment (after consulting with a financial advisor of internationally recognized reputation and outside legal counsel) that (A) such proposal or offer constitutes, or is reasonably likely to lead to, a Superior Proposal; and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would be inconsistent with the Parent Board’s fiduciary duties to Parent and its stockholders under applicable Law; (ii) provided written notice to TDCC of its intent to furnish information or enter into discussions with such Person at least three (3) Business Days prior to taking the first of any such action with respect to any given Person; and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with Parent or having the effect of prohibiting Parent from satisfying its obligations under this Agreement) and, immediately upon its execution, delivered to TDCC a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in this Section 7.03(d), neither the Parent Board nor any committee thereof shall (i) withdraw, qualify, modify, amend or fail to make, or propose publicly to withdraw, qualify, modify or amend the Parent Recommendation; (ii) make any public statement or take any action inconsistent with the Parent Recommendation; or (iii) approve or adopt, or recommend the approval or adoption of, or publicly propose to approve or adopt, any Competing Parent Transaction (any of the actions described in (i), (ii) or (iii), a “Change in the Parent Recommendation”). Notwithstanding the foregoing, if at any time prior to the receipt of the Parent Stockholder Approval and in response to the receipt of an offer or proposal with respect to a Competing Parent Transaction that did not arise or result from any breach of this Section 7.03, the Parent Board determines in its good faith judgment (after consulting with a financial advisor of internationally recognized reputation and outside legal counsel), that such offer or proposal constitutes a Superior Proposal and that the failure by the Parent Board to make a Change in the Parent Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties to Parent and its stockholders under applicable Law, the Parent Board may, with respect to such Superior Proposal, make a Change in the Parent Recommendation; provided, however, that the Parent Board shall not be entitled to exercise its right to make a Change in the Parent Recommendation pursuant to this Section 7.03(d) unless:
(1) Parent has provided written notice to TDCC (a “Notice of Superior Proposal”) advising TDCC that the Parent Board has received a Superior Proposal promptly after the Parent Board determines it has received a Superior Proposal, stating that the Parent Board intends to make a Change in the Parent Recommendation describing the terms and conditions of such Superior Proposal; and
(2) TDCC does not, within five (5) Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make an offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner that the Parent Board determines in its good faith judgment, after consulting with a financial advisor of internationally recognized reputation and outside legal counsel, to be at least as favorable to Parent’s stockholders as such Superior Proposal; provided, however, that, during the Notice Period, Parent shall negotiate in good faith with TDCC (to the extent TDCC desires to negotiate) regarding any Revised Transaction Proposal; 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 Parent and an additional five (5) Business Day Notice Period that satisfies this Section 7.03(d)(2), including with respect to Parent’s obligations to negotiate in good faith with TDCC.
(e) Any disclosure that the Parent Board may be compelled to make with respect to the receipt of a proposal or offer with respect to a Competing Parent Transaction or otherwise consistent with its fiduciary duties to Parent and its stockholders under applicable Law or Rule 14d-9 or with Rule 14e-2(a) promulgated under the Exchange Act will not constitute a violation of this Section 7.03; provided, however, that neither the Parent Board nor any committee thereof shall make a Change in the Parent Recommendation in connection with such disclosure (it being understood that any “stop, look and listen” communication by or on behalf of Parent pursuant to Rule 14d-9(f) shall not be considered a Change in the Parent Recommendation) unless permitted by Section 7.03(d). Any Change in the Parent Recommendation shall not change the approval of the Parent Board for purposes of causing any state takeover statute or other state Law to be inapplicable to the transactions contemplated by this Agreement.
(f) TDCC agrees that neither it nor any of its Representatives shall, and that it shall cause each of its Representatives 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 any proposal or offer to Parent’s stockholders), with respect to any Competing Spinco Transaction; (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Spinco Transaction; (iii) agree to, approve, endorse, recommend or consummate any Competing Spinco Transaction; or (iv) enter into any Competing Spinco Transaction Agreement. TDCC acknowledges and agrees that the doing of any of the foregoing by TDCC or any of its Representatives shall be deemed to be a breach by TDCC of this Section 7.03(f). TDCC shall, and shall cause its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons (other than Parent and its Affiliates) conducted prior to the execution of this Agreement by TDCC or any of its Representatives with respect to a Competing Spinco Transaction. TDCC shall not, and shall not permit any of its Representatives to, release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it or one of its Affiliates is a party in connection with a Competing Spinco Transaction. TDCC shall promptly request each Person (other than Parent and its Affiliates) that has heretofore executed a confidentiality agreement with TDCC in connection with such Person’s consideration of a Competing Spinco Transaction (whether by merger, acquisition of stock or assets or otherwise), to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by TDCC, to enforce such Person’s obligation to do so. TDCC shall promptly (and in any event within 24 hours after TDCC attains knowledge thereof) notify Parent, orally and in writing, after the receipt by TDCC or any of its Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Spinco Transaction, including any request for discussions or negotiations and any request for information relating to TDCC or any of its Affiliates with respect to the Business, or for access to the business, properties, assets, books or records of TDCC or any of its Affiliates with respect to the Business.
Appears in 1 contract
Samples: Merger Agreement (Olin Corp)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from neither it nor any Company Subsidiary nor any of the date directors, officers or employees of this Agreement until the Termination DateCompany or any Company Subsidiary will, and that it will cause its and the Shareholder shall notCompany Subsidiaries’ agents, advisors and other Representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Company Subsidiary), not to, in each case, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"i) to, directly or indirectly, solicit, initiate or encourage (including by means 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(including, without limitation, any proposal or offer to its shareholders) that constitutes, or that could reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction Transaction, (as defined in the Merger Agreement)ii) enter into, or enter into or maintain or continue discussions or negotiate with negotiations with, or provide any nonpublic information to, any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or Contract or commitment contemplating or otherwise relating to any Competing Transaction, or agree (iv) authorize or permit any of the officers, directors or employees of the Company or any Company Subsidiary, or any investment banker, financial advisor, attorney, accountant or other Representative retained by or acting directly or indirectly under the direction of the Company or any Company Subsidiary, to or endorse take any Competing Transaction, other than with Parent or an affiliate action set forth in clauses (a)(i) – (a)(iii) of Parentthis Section 6.04. The Shareholder Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. The Company shall notify Parent as promptly as practicable (but and in any event within 24 hours) notify Parent if hours after the Company has knowledge thereof), orally and in writing, of any proposal or offer, or any inquiry or contactcontact with any person, constituting or regarding a Competing Transaction is madeor 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 inquiry or contact, and (z) whether the Shareholder Company has any intention to provide confidential information to such person. The Company shall promptly inform keep Parent as to informed, on a reasonably current basis (and in any event within 24 hours of the occurrence of any material details changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry inquiry, contact or contact, including request and of any material changes in the identity status and terms of the party making any such proposal, offer, inquiry inquiry, contact or contactrequest (including the material terms and conditions thereof). Without limiting the foregoing, and, the Company shall (A) promptly notify Parent orally and in writing if in writing, promptly deliver or cause it determines to be delivered to Parent initiate actions concerning a copy of such proposal, offer, inquiry inquiry, contact or contact 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 other written material meeting of the Company Board or Special Committee at which the Company Board or Special Committee, as applicable, is reasonably relating theretoexpected to consider any Competing Transaction. The Shareholder 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 6.04, 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 (provided that such bona fide proposal or offer shall not have been obtained in violation of Section 6.04(a) (a “Competing Transaction Proposal”) and the Company shall have complied with the requirements of Section 6.04(a) with respect to such Competing Transaction Proposal), and the Company Board has (i) determined, in 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), that such proposal or offer constitutes a Superior Proposal, (ii) determined, in its good faith judgment upon the unanimous recommendation of the Special Committee (upon advice by independent legal counsel), that, in light of such Superior Proposal, failure to furnish such information or enter into discussions would violate its fiduciary obligations to the Company and its shareholders under applicable Law, (iii) provided written notice to Parent of its intent to furnish information or enter into discussions with such person prior to or simultaneously with the taking any such action, and (iv) obtained from such person prior to taking such action an executed confidentiality agreement on terms no less favorable to the Company 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); provided that the Company shall concurrently make available to Parent any material information concerning the Company and the Company Subsidiaries that is provided to any such person and that was not previously made available to Parent or its Representatives.
(c) Except as set forth in this Section 6.04(c), neither the Company Board nor any committee thereof shall change, withhold, withdraw, qualify or modify, or propose to change, withhold, withdraw, qualify or modify, in a manner adverse to Parent or Merger Sub, the Company Recommendation (a “Change in the Company 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 provisions foregoing, if the Company Board determines, in its good faith judgment upon the unanimous recommendation of the Special Committee, prior to the time of the Shareholders’ Meeting 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 (i) if the Company shall have complied with the requirements of Sections 6.04(a) and 6.04(b) with respect to such proposal or offer; (ii) after (A) providing at least three (3) Business Days’ 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 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, (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) negotiating in good faith with Parent and Merger Sub and their Representatives (to the extent Parent and Merger Sub desire 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; 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 3.36.04; and (iii) if Parent does not, within three (3) Business Days of Parent’s receipt of the Notice of Superior Proposal, make an offer that the Company Board determines, in its good faith judgment upon the unanimous recommendation of the Special Committee (after consultation with a Shareholder who is also a director or officer financial advisor of internationally recognized reputation and independent legal counsel) to be at least as favorable to the Company’s shareholders as such Superior Proposal. Notwithstanding anything to the contrary contained in this Agreement, the obligation of the Company may take to call, give notice of, convene and hold the Shareholders’ Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any action Competing Transaction, or by any Change in his capacity as such the Company Recommendation. The Company shall not submit to the vote of its shareholders any Competing Transaction or enter into any Contract or commitment with respect to any Competing Transaction (including other than a confidentiality agreement entered into in compliance with Section 6.04(b)), or propose to do so.
(d) Nothing in this Agreement shall prohibit the Company Board from (i) taking or disclosing to the Company’s shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act, or exercising his (ii) making any disclosure to the Company’s shareholders that the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the Company’s shareholders under applicable Law (it being agreed that the issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, or, upon determination by the Company that such a member statement is required under applicable Law, a factually accurate public statement by the Company that describes the Company’s receipt of a Competing Transaction Proposal and the operation of this Agreement with respect thereto, shall not in and of itself constitute a Change of Recommendation); provided, that any disclosure of a position contemplated by Rule 14e-2(a) under the Exchange Act other than (A) a “stop, look and listen” communication limited solely to the type contemplated by Rule 14d-9 under the Exchange Act, (B) any express rejection of any applicable Competing Transaction Proposal or (C) any express reaffirmation of its recommendation to its shareholders in favor of the Board Merger, shall be deemed to be a Change of Directors of the Company) as is not limited by the terms of the Merger AgreementRecommendation.
Appears in 1 contract
Samples: Merger Agreement (Sino Gas International Holdings, Inc.)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall Company will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of and will instruct its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Representatives not to, directly or indirectly, solicit, solicit or initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementbelow), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate authorize or permit any of Parentits Representatives to take any such action. The Shareholder Company shall promptly (but in any event within 24 hours) immediately notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder Company shall promptly immediately inform Parent as to the material details of any such proposal, offer, inquiry or contact, including including, without limitation, the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. Notwithstanding anything to the provisions contrary in this SECTION 6.05, the Company's Board of this Section 3.3Directors may furnish information to, and enter into discussions with, a Shareholder person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction if the Company's Board of Directors has (i) reasonably concluded after consultation with the Company Financial Advisor or other financial advisor of nationally recognized reputation that such proposal or offer constitutes a Superior Proposal (as defined below), (ii) reasonably concluded, after consultation with its outside legal counsel, that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is also required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to Parent 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 (iv) obtained from such person an executed confidentiality agreement on terms substantially similar to those contained in the Non-Disclosure Agreement; provided, however, that no information may be furnished and no discussions may be entered into in the event that the Company has taken any actions inconsistent with this SECTION 6.05(a); provided further, however, that the Company's Board of Directors shall furnish to Parent all information provided to the person who has made the Superior Proposal to the extent that such information has not been previously provided to Parent and shall keep Parent promptly and reasonably informed as to the status of any discussions regarding such Superior Proposal. (b) A "Competing Transaction" means any of the following involving the Company (other than the Merger and the other transactions contemplated by this Agreement): (i) a director merger, consolidation, share exchange, business combination or officer other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 25% or more of the assets of the Company may take and the Company Subsidiaries, taken as a whole; (iii) a tender offer or exchange offer for, or any action offer to purchase directly from the Company, 20% or more of the outstanding voting securities of the Company; (iv) any solicitation in his capacity opposition to adoption by the Company's stockholders of this Agreement; or (v) any liquidation, dissolution, recapitalization or other significant corporate reorganization of the Company. (c) A "Superior Proposal" means an unsolicited written bona fide offer made by a third party to consummate an Acquisition Transaction (as such defined below) (i) that is not attributable to a material breach by the Company of SECTION 6.05(a) hereof and (ii) on terms (including complying with or exercising his fiduciary duties as a member conditions to consummation of the contemplated transaction) that the Board of Directors of the Company) as is not limited by Company determines, in its good faith reasonable judgment (based on the written advice of the Company Financial Advisor or another financial advisor of nationally recognized reputation), to be more favorable to the Company stockholders from a financial point of view than the terms of the Merger and with any financing required to consummate the transaction contemplated by such offer committed or likely, in the reasonable good faith judgment of the Company's Board of Directors (based on the written advice of a financial adviser of nationally recognized reputation), to be obtained by such third party on a timely basis. For purposes of this Agreement, an "Acquisition Transaction" shall mean a merger, consolidation, business combination, recapitalization, liquidation, dissolution, sale or disposition or similar transaction involving the Company pursuant to which a person (or its stockholders) would own, if consummated, all or substantially all of the outstanding capital stock of the Company (or of the surviving entity in a merger or the direct or indirect parent of the surviving entity in a merger) or all or substantially all the assets of the Company and the Company Subsidiaries taken as a whole.
Appears in 1 contract
Samples: Merger Agreement (Hillman Co)
No Solicitation of Transactions. (a) The ShareholderCompany shall, subject and shall cause its Subsidiaries, and its and their respective officers, directors, employees, subsidiaries, agents or advisors or other representatives (including, without limitation, any investment banker, attorney or accountant retained by it) ("Representatives") to, immediately cease and cause to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall be terminated any discussions or negotiations with third parties with respect to a Competing Transaction (as defined below). The Company will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of and will instruct its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Representatives not to, directly or indirectly, solicit, initiate or or, except as and only to the extent permitted by Section 8.04(b), encourage (including by means 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(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementbelow), or or, except as and only to the extent permitted by Section 8.04(b), enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate authorize or permit any Representative of Parentthe Company or any of its Subsidiaries to take any such action. The Shareholder Company shall promptly not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(but b) Notwithstanding anything to the contrary in any event within 24 hours) notify Parent if any this Section 8.04, the Company Board may furnish information to, and enter into discussions with, a person who has made an unsolicited bona fide written proposal or offer, or any inquiry or contact, constituting or offer regarding a Competing Transaction (that did not result from a breach of this Section 8.04), and with respect to which the Company Board has (i) determined, in its good faith judgment (after consultation with a financial advisor of internationally recognized reputation), that such proposal or offer constitutes or is madereasonably likely to result in or lead to a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consultation with outside legal counsel, that, in light of such Superior Proposal, the failure to furnish such information or to enter into such discussions would result in a breach of its fiduciary obligations under applicable Law, (iii) provided written notice to Parent of its intent to furnish information or enter into discussions with such person at least two business days prior to taking any such action and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement.
(c) The Company agrees that in addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 8.04, promptly following receipt thereof, the Company shall advise Parent in writing of any request for information or any Competing Transaction, or any inquiry, discussions or negotiations with respect to any Competing Transaction and the terms and conditions of such request for information, Competing Transaction, inquiry, discussions or negotiations and the Company shall promptly provide to Parent copies of any written materials received by the Company in connection with any of the foregoing, and the Shareholder identity of the person or group making any such request for information, Competing Transaction or inquiry or with whom any discussions or negotiations may be taking place (as permitted by Section 8.04(b)). The Company agrees that it shall promptly inform keep Parent informed of the status and material details (including amendments or proposed amendments) of any such request for information, Competing Transaction or inquiry and keep Parent informed as to the material details of any information requested of or provided by the Company (pursuant to Section 8.04(b)) and as to the status and material terms of all substantive discussions or negotiations (permitted by Section 8.04(b)) with respect to any such proposalrequest, offerCompeting Transaction or inquiry. The Company agrees that it shall simultaneously provide to Parent any non-public information concerning the Company that may be provided (pursuant to Section 8.04(b)) to any other person or group in connection with any Competing Transaction which was not previously provided to Parent.
(d) Except as otherwise set forth in this Section 8.04(d), inquiry the Company Board shall not withdraw, qualify, modify or contactamend, including or propose to withdraw, qualify, modify or amend, in any manner adverse to Parent or Merger Sub, the Recommendation of the Company Board, or take any action, or make any statement, filing or release inconsistent with such Recommendation; provided, however, that if, prior to consummation of the Offer, the Company Board reasonably determines in good faith, after consultation with outside legal counsel, that the failure of the Company Board to withdraw, qualify, modify or amend the Recommendation would be a breach of its fiduciary duties under applicable Law, the Company Board shall be permitted to withdraw, qualify, modify or amend, in a manner adverse to Parent or Merger Sub, the Company Recommendation. The Company Board shall promptly deliver to Parent written notice advising Parent (i) that it has withdrawn, qualified, modified or amended, in a manner adverse to Parent or Merger Sub, the Recommendation and (ii) if applicable, the material terms and conditions of the Superior Proposal received by the Company prior to such withdrawal, qualification, modification or amendment and the identity of the party person or persons making any such proposal, offer, inquiry Superior Proposal. Nothing contained in this Section 8.04 shall prohibit the Company or contact, and, if in writing, promptly deliver or cause the Company Board from taking and disclosing to be delivered to Parent its stockholders a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore position with respect to a Competing Transaction. Notwithstanding tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the provisions of this Section 3.3Exchange Act, a Shareholder who is also a director or officer from making any disclosure required by applicable Law; provided, however, that any withdrawal, qualification, modification or amendment of the Company may take any action in his capacity Recommendation shall be made as such (including complying with or exercising his fiduciary duties as a member of and only to the Board of Directors of the Company) as is not limited extent permitted by the terms of the Merger AgreementSection 8.04(d).
Appears in 1 contract
Samples: Merger Agreement (Unilab Corp /De/)
No Solicitation of Transactions. The Shareholder(a) Subject to Section 5.4, subject to the last sentence of this Section 3.3, agrees that from and after the date of this Agreement until the Termination Dateearlier of the Closing or the termination of this Agreement in accordance with its terms, none of the Company, the Shareholder shall notOperating Partnership or any other Company Subsidiary shall, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, nor shall it authorize or permit any of its officers, trustees, directors, officers employees, agents or employees or any representatives (including investment bankerbankers, financial advisor, attorney, accountant or other representative retained by it advisors, attorneys, brokers, finders or any of its Subsidiaries other agents) (such officers, trustees, directors, employees, agents and representatives, collectively, the "REPRESENTATIVES"“Representatives ”) to, directly or indirectly, solicit(i) initiate, initiate solicit or knowingly encourage or facilitate (including by means way of furnishing nonpublic information), or take any other action to facilitate, ) any inquiries or the making of any proposal or offer that consti- tutes, or would reasonably be expected to result in, a Competing Transaction or (ii) enter into discussions or negotiations with, or provide any confidential information or data to, any Person relating to a Competing Transaction.
(b) Subject to Section 5.4, from and after the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, the Company and the Operating Partnership shall take, and shall cause the other Company Subsidiaries to take, all actions reasonably necessary to cause their respective Representatives to immediately cease any discussions or negotiations with any Person other than any Purchaser Party and its Representatives with respect to, or that would reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction.
(c) From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, or agree to or endorse any Competing Transactionthe Company shall notify Parent, other than with Parent or an affiliate orally and in writing, immediately following receipt, of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, material terms and the Shareholder shall promptly inform Parent as to the material details conditions of any such proposal, offer, inquiry written or contact, oral proposal (including the identity of the party making parties) which any of the Company, the Operating Partnership or any of their respective Representatives may receive after the date hereof relating to a Competing Transaction and shall keep Par- ent informed in all material respects and on a timely basis as to the status of and any material developments regarding any such proposal.
(d) For purposes of this Agreement, offera “Competing Transaction” means any of the following (other than the transactions expressly provided for in and to be effected pursuant to this Agreement): (i) any merger, inquiry reorganization, consolidation, share exchange, business combination, liquidation, dissolution, recapitalization or contactsimilar transaction involving the Company or the Operating Partnership or any other Significant Subsidiary of the Company; (ii) any direct or indirect acquisition or purchase, andin a single transaction or series of related transactions, of (x) 25% or more of the consolidated gross assets of the Company and the Company Subsidiaries, taken as a whole, (y) 25% or more of any class of voting securities of the Company or the Operating Partnership or any other Significant Subsidiary of the Company (or any debt or equity securities convertible into or exercisable or exchangeable for such amount of voting securities) or (z) 25% or more of any class of voting securities of the Company or the Operating Partnership or any other Significant Subsidiary of the Company (or any debt or equity securities convertible into or exercisable or exchangeable for such amount of voting securities) if such securities carry the right, contractually or otherwise, to appoint or designate any member or members of the Company Board of Directors; or (iii) any tender offer or exchange offer that, if consummated, would result in writingany Person beneficially owning 25% or more of any class of voting securities of the Company or the Operating Partnership.
(e) For purposes of this Agreement, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other “Superior Competing Trans- action” means a bona fide written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to proposal for a Competing Transaction. Notwithstanding , which proposal was not, directly or indirectly, the provisions result of a breach of this Section 3.35.3, made by a Shareholder who is also third party (x) on terms that a director or officer majority of the disinterested members of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors determines in their good faith judgment (based on the financial analysis and other advice of independent financial advisors and on the advice of independent legal advisors, and after giving effect to the payment of the Company) as is not limited by Break-Up Fee and the terms Expenses pursuant to Section 7.2 and to the expected timing of the closing of the proposed Competing Transaction) to be more favorable to the Company Common Stockholders than the Merger AgreementConsideration (taking into account any changes to the Merger Consideration contemplated by Section 5.4(b)), (y) which is reasonably likely to be consummated (taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal, including any conditions, and the identity of the offeror) and (z) for which fi- nancing, to the extent required, is then fully committed or which, in the good faith judgment of a majority of such disinterested members (based on the advice of independent financial advisors), is reasonably capable of being timely financed by such third party.
Appears in 1 contract
Samples: Merger Agreement (Mills Corp)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall neither it authorize or permit nor any Subsidiary nor any of its the directors, officers or employees of it or any Subsidiary will, and that it will not authorize or knowingly permit its or its Subsidiaries' agents, advisors and other representatives (including, without limitation, any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"Subsidiary) to, directly or indirectly, (i) solicit, initiate or encourage (including by means way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or facilitate the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to to, a proposal or offer for, any Competing Transaction (as defined in the Merger Agreementbelow), or (ii) enter into or maintain or continue discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 hourstwo (2) notify Parent days after any director or executive officer of the Company attains knowledge thereof), orally and promptly thereafter in writing, if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder Company shall provide Parent with 48 hours prior notice (or such lesser prior notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the contrary in this Section 6.04, 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, if the Company Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of nationally recognized reputation), that such proposal or offer constitutes a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), that, in light of such Superior Proposal, the failure to furnish such information or enter into discussions would cause the members of the Company Board of Directors to breach their fiduciary duties to the Company and its stockholders under applicable Law, (iii) provided written notice to Parent of its intent to furnish information or enter into discussions with such person at least three (3) business days prior to taking any such action, and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 6.04(c), neither the Company Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Recommendation (a "CHANGE IN THE COMPANY 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 provisions foregoing, if the Company Board determines, in its good faith judgment prior to the time of the Company Stockholders' Meeting and after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), that a failure to make a Change in the Company Recommendation would cause the members of the Company Board of Directors to breach their fiduciary duties to the Company and its stockholders under applicable Law, the Company Board may (i) recommend a Superior Proposal or (ii) terminate this Agreement pursuant to Section 8.01(g), but only (A) after providing written notice to Parent (a "NOTICE OF SUPERIOR PROPOSAL") advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions 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, and (B) if Parent does not, within three (3) business days of Parent's receipt of the Notice of Superior Proposal, make an offer that the Company Board determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation) to be at least as favorable to the Company's stockholders as such Superior Proposal. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction or otherwise in order to comply with its fiduciary duties to the Company and its stockholders under applicable Law or Rule 14d-9 or 14e-2 will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the Company Board in violation of this Section 3.36.04(c). Notwithstanding anything to the contrary contained in this Agreement, a Shareholder who is also a director or officer the obligation of the Company may take any action in his capacity as such (including complying with to call, give notice of, convene and hold the Company Stockholders' Meeting shall not be limited or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited otherwise affected by the terms commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Merger AgreementCompany Recommendation. The Company shall not submit to the vote of its stockholders any Competing Transaction, or propose to do so at the Company Stockholders' Meeting.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Keith Companies Inc)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date neither it nor any Subsidiary nor any Representative of this Agreement until the Termination Date, the Shareholder shall notit or any Subsidiary will, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"i) to, directly or indirectly, solicit, initiate or encourage (including by means way of furnishing nonpublic information), or take any other action to facilitatefor the purpose of facilitating, 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 (as defined below), or (ii) enter into or participate in or maintain or continue discussions or negotiations with any person, or furnish to any person any nonpublic information with respect to, or take any other action for the purpose of facilitating such inquiries or to obtain a proposal or offer, or that could reasonably may be expected to lead to a proposal or offer foroffer, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment providing for or otherwise relating to or endorse any Competing Transaction, other than with Parent or an affiliate (iv) authorize or permit any Representative of Parentthe Company or any of its Subsidiaries to take any such action. The Shareholder Company shall notify Parent as promptly as practicable (but and in any event within 24 hoursone business day) notify Parent if after the Company receives any oral or written proposal or offer, offer or any inquiry or contact, constituting contact with any person regarding a potential proposal or offer regarding a Competing Transaction is madeTransaction, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer (including material amendments or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written proposed material reasonably relating theretoamendments). The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the contrary in this Section 6.4, to the extent that a person has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Company Board has (i) determined, in its good faith judgment (after consulting with its financial advisor), that such proposal or offer constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consulting with its outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such proposal or offer, the failure to furnish such information or enter into discussions would be inconsistent with its fiduciary duties under applicable Law, (iii) provided written notice to Parent of its intent to furnish information or enter into discussions with such person prior to taking any such action and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party), the Company may:
(i) Furnish nonpublic information to the third party making such an offer regarding a Competing Transaction, provided that (A) concurrently with furnishing any such nonpublic information to such party, the Company gives Parent written notice of its intention to furnish such nonpublic information, and (B) contemporaneously with furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished); and
(ii) Engage in negotiations with the third party with respect to the Competing Transaction, provided that concurrently with entering into negotiations with such third party, the Company gives Parent written notice of the Company’s intention to enter into negotiations with such third party.
(c) Except as set forth in this Section 6.4(c) and subject to Section 8.1(e), neither the Company Board nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval by the Company Board or its committees of this Agreement or the Merger or its Company Recommendation (a “Change in the Company 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 (except for a confidentiality agreement as provided in Section 6.4(b) above). Notwithstanding the foregoing, if the Company has not breached the provisions of this Section 3.3, 6.4(a) or 6.4(b) and a Shareholder who is also a director or officer majority of the Company Board determines, in its good faith judgment at any time prior to the approval of the Merger by the holders of Shares after consulting with outside legal counsel (who may take any action be the Company’s regularly engaged outside legal counsel), that the failure to make a Change in his capacity the Company Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Company Board may make a Change in the Company Recommendation and/or recommend a Superior Proposal, but only (i) after providing written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, providing Parent with a copy of all written materials and information delivered or otherwise made available to the person making the Superior Proposal and a summary of all material oral conversations between the Company and such party regarding the Superior Proposal, and identifying the person making such Superior Proposal and indicating that such Superior Proposal is in effect and has not been withdrawn and that the Company Board intends to effect a Change in the Company Recommendation and (ii) if Parent does not prior to three business days after Parent’s receipt of the Notice of Superior Proposal make an offer that the Company Board determines, in its good faith judgment (after consulting with its financial advisor), to be at least as favorable to the Company’s stockholders as such (including complying Superior Proposal; provided, however, that the Company shall not be permitted to enter into any agreement with respect to the Superior Proposal until this Agreement has been terminated and any fee paid pursuant to Sections 8.1(e) and 8.3(b). Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or exercising his offer for a Competing Transaction or otherwise in order to comply with its fiduciary duties as under applicable Law or Rule 14d-9 or 14e-2 under the Exchange Act will not constitute a member violation of this Agreement or a Change in the Company Recommendation; provided that the content of any such disclosure thereunder shall be governed by the terms of this Agreement, and provided further that any such communication with the stockholders of the Company shall be deemed a Change of Recommendation unless the Board of Directors of the Company) as is Company reaffirms, in that communication or disclosure, its Company Recommendation. Without limiting the foregoing, the Company shall not limited by effect a Change of Recommendation unless specifically permitted pursuant to the terms of Section 6.4(c). In addition, without limiting the Merger foregoing, nothing contained in this Agreement shall prohibit the Company or its Board of Directors from making “stop-look-and-listen” communications to the stockholders of the Company as limited by and pursuant to Rule 14d-9(f) promulgated under the Exchange Act, and such communications shall not be considered a “Change of Recommendation” under this Agreement.
(d) A “Competing Transaction” means any of the following (other than the Merger): (i) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any Subsidiary; (ii) any sale, lease, exchange, transfer or other disposition of more than 20% of the assets of the Company or of its Subsidiaries taken as a whole; (iii) any sale, exchange, transfer or other disposition in which the Company or any Subsidiary participates (including by way of taking any action to comply with Section 203 of the DGCL, but excluding typical stock transfer functions) and which results in any person beneficially owning more than 20% of any class of equity securities of the Company or of any Subsidiary; or (iv) any tender offer or exchange offer that, if consummated, would result in any person beneficially owning more than 20% of any class of equity securities of the Company or of any Subsidiary.
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from (a) Following the date of this Agreement until the Termination Datehereof, the Shareholder shall Company will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of and will instruct its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Representatives not to, directly or indirectly, (1) solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction Transaction, (as defined in the Merger Agreement), or 2) enter into or maintain or continue discussions or negotiate with any person or entity Person in furtherance of such inquiries or to obtain a Competing Transaction, Transaction or agree (3) authorize or permit any of its Representatives to or endorse take any Competing Transaction, other than with Parent or an affiliate of Parentsuch action. The Shareholder Company shall promptly (but in any no event within later than 24 hours) notify Parent if any proposal or offer, or any inquiry or contactcontact with any Person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder Company shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including including, without limitation, the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact contact. The Company shall keep Parent informed in all material respects of the status and material terms (including any material changes therein) of any such proposal, offer or inquiry and provide Parent as soon as reasonably practicable after receipt thereof (but in no event later than 24 hours) with copies of all correspondence and other written material reasonably relating theretosent or provided to the Company from any third party in connection therewith. The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. Notwithstanding anything to the provisions of contrary in this Section 3.37.04, prior to the Company Common Shareholder Approval, the Company's board of directors may furnish information to, and enter into discussions or negotiations (or waive any confidentiality restrictions in a standstill agreement that would otherwise restrict the foregoing) with, a Shareholder Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction only if the Company's board of directors has: (1) concluded, in good faith, after consultation with its independent financial advisor that such proposal or offer constitutes or is also reasonably likely to lead to a director Superior Proposal; (2) concluded, in good faith, after consultation with its outside legal counsel, that, in light of such Competing Transaction, the furnishing of such information or officer of entering into discussions is required to comply with its fiduciary obligations to the Company and its shareholders under applicable Law; (3) provided written notice to Parent of its intent to furnish information or enter into discussions or negotiations with such Person at least three Business Days prior to taking any such action; and (4) obtained from such Person an executed confidentiality and standstill agreement on terms no less favorable to the Company than those contained in the Non-Disclosure Agreement; provided, however, that no information may take any action be furnished and no discussions may be entered into in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of event that the Company has breached this Section 7.04(a); and provided further, however, that the Company) as is 's board of directors shall furnish to Parent all information provided to the Person who has made the proposal or offer regarding the Competing Transaction to the extent that such information has not limited by the terms of the Merger Agreementbeen previously provided to Parent.
Appears in 1 contract
Samples: Merger Agreement (Fidelity National Financial Inc /De/)
No Solicitation of Transactions. The Shareholder, subject to (a) Each of the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall Company and Parent will not, directly or indirectly, norand will instruct its officers, in case the Shareholder is a corporation directors, employees, subsidiaries, affiliates, agents or advisors or other entityrepresentatives (including, shall it authorize or permit any of its directorswithout limitation, officers or employees or any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES"it) not to, directly or indirectly, take any action to (i) solicit, initiate or knowingly encourage (including by means way of furnishing nonpublic information), or take any other action knowingly to facilitate, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders or shareholders, as the case may be) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction Transaction, (as defined in the Merger Agreement), or ii) enter into or maintain or continue participate in any way in discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or (iii) agree to or approve, recommend or endorse any Competing Transaction, or authorize or permit any of the officers, directors, employees or affiliates of such party or any of its subsidiaries, or any investment banker, financial advisor, attorney, accountant or other than with Parent representative retained by such party or an affiliate any of Parentsuch party's subsidiaries, to take any such action. The Shareholder Company shall promptly (but in any event within 24 hours) notify Parent and Parent shall notify the Company promptly if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately Company and Parent shall cease immediately and cause to be terminated any and all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer Transaction and promptly request that all confidential information furnished on behalf of the Company may take or Parent be returned. Each of the Company and Parent agrees not to release any action third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the contrary in his capacity as such (including complying with or exercising his fiduciary duties as a member of Section 6.04(a), the Board of Directors of each of the Company) as is not limited by Company and Parent may cause Parent or the Company to furnish, pursuant to a customary confidentiality agreement the terms of which, if more favorable to the other party to such confidentiality agreement than those in place with the other party hereto shall be extended to the other party hereto, information to, and 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 written proposal to it relating to a Competing Transaction which was not solicited by it or which did not otherwise result from a breach of Section 6.05(a), to the extent that (i) such proposal is received prior to the obtaining of the approval of the Company's stockholders, in the case of the Company, or the shareholders of Parent, in the case of Parent, and (ii) the Board of the Company or Parent (as applicable) determines in good faith that the failure to do so would cause it to breach its fiduciary duties to the Company or its stockholders or Parent or its shareholders under applicable Laws after receipt of advice to such effect from independent legal counsel (who may be such party's regularly engaged independent legal counsel). Such furnishing of information and participation in discussions or negotiations in accordance with this Section 6.05(b) shall not constitute a breach of this Agreement by such party; provided that neither the Company nor Parent shall have any right to terminate this Agreement or otherwise cease performance of its obligations hereunder except pursuant to Article VIII hereof.
(c) 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 Agreementany 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 25% or more of the consolidated assets of such party and its subsidiaries, taken as a whole, or (iii) transaction in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership of, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 25% or more of the outstanding voting capital stock of the Company or Parent, respectively.
Appears in 1 contract
Samples: Merger Agreement (Fort Howard Corp)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, Company agrees that from the date of this Agreement until the Termination Date, the Shareholder shall it will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall and that it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any will cause each of its Subsidiaries (collectively, the "REPRESENTATIVES") not to and will direct each of its and its Subsidiaries’ representatives not to, directly or indirectly, (i) solicit, initiate or encourage (including by means of furnishing nonpublic information)initiate, seek or take any other action to facilitatefacilitate or knowingly encourage the making, any inquiries submission or the making announcement of any proposal or offer with respect tothat constitutes, or that would be reasonably may be expected to lead to a proposal any Competing Proposal, (ii) enter into, maintain, continue or offer forparticipate in any discussions or negotiations with any Person or entity in furtherance of, or furnish to any Person any information or otherwise cooperate in any way with respect to, any Competing Proposal, (iii) agree to, approve, endorse, recommend or consummate any Competing Proposal, (iv) enter into, or propose to enter into, any Competing Transaction (as defined in the Merger Agreement), or enter into (v) resolve, propose or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transactionagree, or agree authorize or permit any representative to or endorse do any Competing Transaction, other than with Parent or an affiliate of Parentthe foregoing. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeCompany shall, and the Shareholder shall promptly inform Parent as cause its Subsidiaries to the material details of any such proposaland will direct its and its Subsidiaries’ representatives to, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties Persons conducted heretofore prior to the execution of this Agreement by the Company, any of its Subsidiaries or its or any of their respective representatives with respect to any Competing Proposal, request the prompt return or destruction of all confidential information previously furnished and terminate access to any physical or electronic data rooms related to a potential Competing Transaction. Notwithstanding the provisions of this Section 3.3Proposal previously granted to such Person.
(b) The Company shall promptly, a Shareholder who is also a director or officer and in any event within 24 hours of the Company may take obtaining knowledge of the receipt thereof, advise Parent in writing of any action in his capacity as Competing Proposal, including the financial and other material terms and conditions of any such Competing Proposal (including complying with or exercising his fiduciary duties as any changes thereto). The Company shall (i) keep Parent fully informed on a member current basis of the Board of Directors of the Company) as is not limited by status and material details (including any change to the terms thereof) of any such Competing Proposal and (ii) provide to Parent, as soon as practicable after receipt or delivery thereof (and in any event, within 24 hours of such receipt or delivery), copies of all correspondence (other than non-substantive written correspondence) and other written material (including all draft and final versions (and any amendments thereto) of agreements (including schedules and exhibits thereto) and any comments thereon) relating to any such Competing Proposal exchanged between the Merger AgreementCompany or any of its Subsidiaries (or their representatives), on the one hand, and the Person making such Competing Proposal (or its representatives), on the other hand.
(c) Notwithstanding anything in this Agreement to the contrary, neither the Company Board nor any committee thereof shall withdraw, revoke, rescind, modify or amend in any manner the Drag-Along Resolution.
Appears in 1 contract
No Solicitation of Transactions. The ShareholderNeither Seller, subject Parent nor any of their respective Affiliates will, directly or indirectly, through any officer, director or agent of any of them or otherwise, initiate, solicit or encourage (including by way of furnishing non-public information or assistance), or enter into negotiations of any type, directly or indirectly, or enter into a confidentiality agreement, letter of intent or purchase agreement, merger agreement or other similar agreement with any Person, firm or corporation other than Buyers with respect to a sale of any substantial portion of the property or assets (including the Purchased Assets) of Seller, or a merger, consolidation, business combination, sale of all or any substantial portion of the capital stock or other equity interests of Seller, or the liquidation or similar extraordinary transaction with respect to Seller that may prevent or materially delay the performance by Seller of any of its obligations under this Agreement or the consummation of the transactions contemplated hereby. Seller will notify Buyers orally (within one Business Day) and in writing (as promptly as practicable) of all relevant terms of any proposals by a third party to do any of the foregoing which Seller or any of its Affiliates or any of their respective officers, directors, partners, employees, investment bankers, financial advisors, attorneys, accountants or other representatives may receive relating to any of such matters and, if such proposal is in writing, Seller will deliver to Buyers a copy of such inquiry or proposal. Notwithstanding the foregoing, and for avoidance of doubt, nothing in this Agreement shall be deemed or interpreted to prohibit or limit the right and ability of Parent or any other Affiliate of Parent (other than Seller) and their representatives from (and the provisions of this Section 6.5 shall not apply to their) engaging in negotiations, providing information or entering into transactions that relate to any tender offer, sale of all or substantially all of the assets of, merger, or any other similar business transaction or reorganization (no matter how structured), of Parent or any other Affiliate of Seller, provided that any such negotiations, information or transaction fitting within this last sentence of this Section 3.3, agrees that from the date of 6.5 do not diminish or otherwise adversely affect Buyers' rights under this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (United Western Bancorp Inc)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall Company will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of and will instruct its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Representatives not to, directly or indirectly, solicit, solicit or initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementbelow), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate authorize or permit any of Parentits Representatives to take any such action. The Shareholder Company shall promptly (but in any event within 24 hours) immediately notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder Company shall promptly immediately inform Parent as to the material details of any such proposal, offer, inquiry or contact, including including, without limitation, the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. Notwithstanding anything to the provisions of contrary in this Section 3.3SECTION 6.05, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Company's Board of Directors of 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 if the Company's Board of Directors has (i) reasonably concluded after consultation with the Company Financial Advisor or other financial advisor of nationally recognized reputation that such proposal or offer constitutes a Superior Proposal (as defined below), (ii) reasonably concluded, after consultation with its 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 Parent 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 (iv) obtained from such person an executed confidentiality agreement on terms substantially similar to those contained in the Non-Disclosure Agreement; provided, however, that no information may be furnished and no discussions may be entered into in the event that the Company has taken any actions inconsistent with this SECTION 6.05(a); provided further, however, that the Company's Board of Directors shall furnish to Parent all information provided to the person who has made the Superior Proposal to the extent that such information has not limited by been previously provided to Parent and shall keep Parent promptly and reasonably informed as to the terms status of the Merger Agreementany discussions regarding such Superior Proposal.
Appears in 1 contract
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall Company will not, directly or indirectlyand will cause its subsidiaries, norofficers, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment bankeragents, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") advisers and affiliates not to, directly or indirectly, solicit, initiate or knowingly encourage (including including, but not limited to, by means 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(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementbelow), or enter into or maintain or continue discussions or negotiate with any person or entity Person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of the officers, directors or employees of the Company, its subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or its subsidiaries, to take any such action; provided, however, that the Board of Directors of the Company may furnish information to, or enter into discussions or negotiations with, any Person or entity that makes an unsolicited bona fide written proposal to acquire the Company pursuant to a Competing Transaction (a “Competing Transaction Proposal”) prior to the time this Agreement and the Merger shall have been approved by the Company Stockholders in accordance with the DGCL and the Company’s Certificate of Incorporation and Bylaws and pursuant to the terms and conditions set forth in Section 6.02(b), if, the Board of Directors of the Company determines in good faith, that (i) after consultation with the Company’s financial advisor, that such proposal would be more favorable to the Company’s stockholders (from a financial point of view) than the Merger, and (ii) upon the advice of outside counsel that taking such action is required in the exercise of its fiduciary duties (together, a “Superior Proposal”). The Company shall, and shall cause its subsidiaries to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement with any parties other than Parent with Parent or an affiliate respect to any of Parent. the foregoing, pending its compliance with the procedures set forth below.
(b) The Shareholder Company shall, and shall cause it subsidiaries to, promptly (but in any event within 24 hours) notify Parent if after receipt by the Company (or any of its subsidiaries, officers, directors, employees, agents, advisors or other representatives) of any proposal for, or offerinquiry respecting, any Competing Transaction, or any request for nonpublic information in connection with such proposal or inquiry or contactfor access to the properties, constituting books or regarding records of the Company or its subsidiaries by any Person that informs or has informed the Company or its subsidiaries that it is considering making or has made such a proposal or inquiry and shall provide to Parent with such notice copies of any offer or proposal in respect of any Competing Transaction that is reasonably likely to be a Superior Proposal. If the Board of Directors of the Company determines in good faith that a Competing Transaction Proposal constitutes or is madelikely to constitute a Superior Proposal, and the Shareholder shall promptly inform Parent as Company may after the five (5) day period following such determination (x) furnish information, with respect to the material details Company and its subsidiaries, to such Person making such Competing Transaction Proposal pursuant to a customary confidentiality agreement not less restrictive of any such proposalPerson than the Confidentiality Agreement, offer, inquiry provided that all such information (to the extent such information has not been provided to Parent) is provided or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered made available to Parent a copy of at such proposal, offer, inquiry or contact time such information is made available to such Person and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing (y) participate in discussions or negotiations with any parties conducted heretofore with respect to a the Person making such Competing Transaction. Notwithstanding Transaction Proposal regarding the provisions same.
(c) The Board of this Section 3.3, a Shareholder who is also a director or officer Directors of the Company may take shall recommend approval and adoption of the Merger, the Transactions Documents and the other transactions contemplated thereby to holders of the Company Stock. Neither the Board of Directors of the Company nor any action committee thereof shall (i)(A) withdraw (or modify in his capacity as such a manner adverse to Parent) or propose to withdraw (including complying with or exercising his fiduciary duties as modify in a member manner adverse to Parent), the approval, recommendation, or declaration of advisability of the Board of Directors of the CompanyCompany or committee thereof of this Agreement or the Merger (it being understood that taking a neutral position or no position with respect to a Competing Transaction Proposal shall be considered an adverse modification) or (B) recommend, adopt or approve, or propose to recommend, adopt or approve any Competing Transaction Proposal (any action described in this subsection (i) being referred to as a (“Company Adverse Recommendation Change”) or (ii) approve or recommend, or propose to approve or recommend, or allow the Company or its subsidiaries to execute, enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement or other business combination or acquisition agreement, joint venture agreement or other agreement constituting or relating to a Competing Transaction Proposal (other than a confidentiality agreement related thereto). Notwithstanding the foregoing, the Board of Directors of the Company may make a Company Adverse Recommendation Change in connection with a Superior Proposal if the Board of Directors determines in good faith (after receiving advice of outside counsel) that such action is not limited required by the exercise of its fiduciary duties under applicable Law; provided that no Company Adverse Recommendation Change may be made in connection with a Superior Proposal until the fifth business day after Parent’s receipt from the Company of a notice (x) advising Parent that the Board of Directors of the Company has determined that such Competing Transaction Proposal constitutes a Superior Proposal and it intends to make a Company Adverse Recommendation Change and (y) containing all copies of any offer or proposal in respect to the Superior Proposal (it being understood that any changes to the financial or material terms of such Superior Proposal shall require a new notice and five (5) day period). In determining whether to make a Company Adverse Recommendation Change in response to a Superior Proposal, the Board of Directors shall take into account any changes to the terms of the Merger Agreementthis Agreement proposed by Parent (in response to a notice) in determining whether such proposal shall constitute a Superior Proposal.
Appears in 1 contract
Samples: Merger Agreement (Mgi Pharma Inc)
No Solicitation of Transactions. The ShareholderCompany undertakes and shall cause its subsidiaries and direct its officers, subject directors, employees and representatives (including, for the avoidance of doubt, any investment bankers, legal counsel and other external advisors) to undertake, as between the Signing Date and the Closing Date:
(a) except as provided in clause (c) below, not to solicit, knowingly encourage, facilitate or promote or discuss with or provide confidential information with respect to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, Company to any Person in case the Shareholder is a corporation or other entity, shall it authorize or permit connection with any of its directors, officers or employees Competing Offer or any investment banker, financial advisor, attorney, accountant proposal for a Competing Offer or for any other representative retained by it transaction involving the transfer of all or any material portion of its Subsidiaries the Company’s assets or businesses, whether through a public tender offer or by sale or transfer of assets, license, option, warrant, sale of shares, reorganization or merger, transfer of employees in a hiring action by a third party (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent the Offeror or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hoursits representatives) notify Parent if any proposal or offerotherwise, or any inquiry other similar corporate transaction that would constitute or contact, constituting result in any competing transaction that would harm or regarding a Competing Transaction is made, and hinder the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity completion of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause Tender Offer (“Competing Proposal”);
(b) to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions any discussions, negotiations or negotiations other activities related to any Competing Proposal conducted prior to the Signing Date;
(c) not to, upon receipt of a Competing Proposal or a Competing Offer, directly or indirectly, knowingly facilitate, promote, or encourage or discuss with any parties conducted heretofore or provide confidential information with respect to a the Company to the Persons making such Competing Transaction. Notwithstanding Proposal (“Promoting Measures”), unless the provisions Board of this Section 3.3, a Shareholder who is also a director or officer Directors of the Company may determines in good faith, after having received advice from external legal counsel and financial advisor, that the failure to take any action in his capacity as such (including complying Promoting Measures would be inconsistent with or exercising his fiduciary duties as a member the Fiduciary Duties of the Board of Directors of the Company. The Company shall promptly provide the Offeror any information regarding the Company provided to any third party to the extent such information has not been previously provided to the Offeror;
(d) as is not limited to promptly inform the Offeror in writing about any Competing Proposal, including, to the extent available to the Company, the identity of the offeror and the price and other main terms and conditions of such Competing Proposal, and of any material amendments to such price and terms and conditions by the third-party offeror. The Company shall keep the Offeror informed, on a current basis, of the status and material terms of any such Competing Proposal, including any material amendments or proposed amendments as to price and other material terms thereof; and
(e) to provide the Merger AgreementOfferor with an opportunity to negotiate with the Board of Directors of the Company about matters arising from the Competing Proposal. For the avoidance of doubt, nothing in this Section 5.2 shall be deemed to limit in any way whatsoever the rights and/or obligations of the Company (or the Board of Directors of the Company) under Section 3.2. In addition, nothing contained herein shall prevent the Board of Directors of the Company from (i) complying with Rule 14e-2(a) under the Exchange Act with regard to a Competing Proposal or a Competing Offer so long as any such action taken or statement made to so comply also complies with Section 3.2 and the other terms of this Section 5.2; or (ii) issuing a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act.
Appears in 1 contract
No Solicitation of Transactions. The Each of the Shareholders agrees, solely in the Shareholder's capacity as a shareholder of the Company, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it not authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it the Shareholder or any acting on behalf of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, Shareholder to solicit, initiate or encourage enable (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect that constitutes, or may reasonably be likely to lead to, any Company Takeover Proposal or that reasonably may be expected any Alternative Proposal, or, subject to lead to a proposal or offer forSection 6.1 hereof, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing TransactionCompany Takeover Proposal or an Alternative Proposal, or agree to or endorse any Competing TransactionCompany Takeover Proposal or any Alternative Proposal, or authorize or permit any of its Representatives to take any such action, other than with Parent Buyer or an affiliate of ParentBuyer. The Subject to Section 6.1 hereof, Shareholder shall promptly (but in any event within 24 hours) immediately notify Parent Buyer if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction Company Takeover Proposal or an Alternative Proposal is made, and the Shareholder shall promptly immediately inform Parent Buyer as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent Buyer a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director Company Takeover Proposal or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementan Alternative Proposal.
Appears in 1 contract
Samples: Shareholder Agreement (Fidelity National Financial Inc /De/)
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall Company will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of and will instruct its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Representatives not to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to(including, or that reasonably may be expected to lead to a without limitation, any proposal or offer forto its stockholders) that constitutes, or is reasonably likely to lead to, any Competing Transaction (as defined in the Merger Agreementparagraph (b) of this Section 6.04), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate authorize or permit any of Parentits Representatives to take any such action. The Shareholder Company shall promptly (but in any event within 24 hours) notify Parent if any proposal proposal, offer or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder Company shall promptly inform Parent as to the material details of any such proposal, offeroffer or inquiry, inquiry or contactincluding, including without limitation, the identity of the party making any such proposal, offer, inquiry offer or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating theretoinquiry. The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement relating to a Competing Transaction to which it is a party. Notwithstanding anything to the provisions of contrary in this Section 3.36.04, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with furnish information to, and enter into discussions or exercising his fiduciary duties as negotiations with, a member of person who has made an unsolicited, bona fide proposal or offer regarding a Competing Transaction only if the Company's Board of Directors of has (i) concluded after consultation with the Company's external legal counsel and its financial advisor that such proposal or offer constitutes or could reasonably lead to a Superior Proposal (as defined below), (ii) has concluded, after consultation with its external legal counsel, that, in light of such Competing Transaction, the failure to furnish such information or enter into discussions or negotiations is reasonably likely to result in a breach of its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided notice to Parent of its intent to furnish information or enter into discussions or negotiations with such person at least one business day prior to taking any such action and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Non-Disclosure Agreement; provided, however, that no information may be furnished and no discussions may be entered into in the event that the Company has intentionally breached this Section 6.04(a); provided further, however, that the Company's Board of Directors shall furnish to Parent all information provided to the person who has made the Competing Transaction to the extent that such information has not been previously provided to Parent and shall keep Parent promptly and reasonably informed as is not limited by to the terms status of the Merger Agreementany discussions regarding such Competing Transaction.
Appears in 1 contract
Samples: Merger Agreement (Selectica Inc)
No Solicitation of Transactions. The Shareholder, subject (a) During the period beginning on the Company’s receipt of the Requisite Stockholder Approval and ending on the earlier to occur of the last sentence of this Section 3.3, agrees that from Effective Time or the date valid termination of this Agreement until the Termination Datepursuant to Section 9.1, the Shareholder shall Company and the Party Company Stockholders will not, directly or indirectly, norand each will instruct its respective Affiliates, in case the Shareholder is a corporation officers, directors, employees, agents, advisors or other entity, shall it authorize or permit any of its directors, officers or employees or representatives (including any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectivelyit), the "REPRESENTATIVES") not to, directly or indirectly, solicit, initiate or knowingly encourage (including by means way of furnishing nonpublic information), or take any other action knowingly to facilitate, any inquiries or the making of any proposal or offer with respect to(including any proposal or offer to the Company Stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or enter into or maintain or continue discussions or negotiate with any person Person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate authorize or permit any of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal the officers, directors or offeremployees of the Company, or any inquiry investment banker, financial advisor, attorney, accountant or contactother representative retained by the Company, constituting or regarding a Competing Transaction is made, to take any such action. The Company and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder Party Company Stockholders immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties Persons conducted heretofore with respect to a Competing Transaction. Notwithstanding .
(b) The Company will notify Parent promptly after receipt by the provisions Company (or any of this Section 3.3its officers, a Shareholder who is also a director directors, employees, agents, advisors or officer other representatives or any Party Company Stockholder) of any proposal for, or inquiry respecting any Competing Transaction, or any request for nonpublic information in connection with such proposal or inquiry or for access to the properties, books or records of the Company may take by any action Person or entity that informs or has informed the Company that it is considering making or has made such a proposal or inquiry. Such notice to Parent shall indicate in his capacity as such (including complying with or exercising his fiduciary duties as a member reasonable detail the identity of the Board of Directors of the Company) as is not limited by Person making such proposal or inquiry and the terms and conditions of the Merger Agreementsuch proposal or inquiry.
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject (a) During the period beginning on the Company’s receipt of the Requisite Company Vote and ending on the earlier to occur of the last sentence of this Section 3.3, agrees that from Effective Time or the date valid termination of this Agreement until the Termination Datepursuant to Article 8, the Shareholder Company shall not, and shall not permit any Subsidiary to, directly or indirectly, norand each will instruct its respective Affiliates, in case the Shareholder is a corporation or other entityofficers, shall it authorize or permit any of its directors, officers or employees or employees, agents, advisors and other representatives (including any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectivelyit), the "REPRESENTATIVES") not to, directly or indirectly, solicit, initiate or knowingly encourage (including by means way of furnishing nonpublic information), or take any other action knowingly to facilitate, any inquiries or the making of any proposal or offer with respect to(including any proposal or offer to the Stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or enter into or maintain or continue any discussions or negotiate negotiations with any person or entity in furtherance of such inquiries or Person with respect to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately Company shall cease immediately and cause to be terminated all existing discussions or negotiations with any parties Persons conducted heretofore with respect to a Competing Transaction. Notwithstanding .
(b) The Company will notify Purchaser promptly after receipt by the provisions Company or any of this Section 3.3its Affiliates (or any of its or their officers, a Shareholder who is also a director directors, employees, agents, advisors or officer other representatives) of any proposal for, or inquiry with respect to any Competing Transaction, or any request for information or for access to the properties, books or records of the Company may take or its Subsidiaries in connection with any action such proposal or inquiry. Such notice to Purchaser shall indicate in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by reasonable detail the terms of the Merger Agreementand conditions thereof.
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from From and after the date hereof and until the earlier of this Agreement until the Effective Time or the Termination Date, the Shareholder shall notnone of Company, EAI, its respective directors, officers, employees, stockholders, consultants, advisors, representatives (including accountants and attorneys) or agents (collectively, "Company Representatives") shall, directly or indirectly, norinitiate, in case encourage or solicit any offers, bids or indications of interest, conduct negotiations or discussions with any person other than Parent with respect to any Competing Transaction. Furthermore, from and after the Shareholder is date hereof and until the earlier of the Effective Time or the Termination Date, neither Company, EAI nor any Company Representatives shall (i) disclose any information not customarily disclosed to any person concerning Company or EAI and that such party reasonably believes could be used for the purpose of formulating an offer or proposal to enter into a corporation or other entity, shall it authorize or permit Competing Transaction; (ii) cooperate with any of its directors, officers or employees person to make any proposal to purchase all or any investment banker, financial advisor, attorney, accountant part of Company or other representative retained by it or any of its Subsidiaries EAI (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate ) other than inventory or encourage (including by means of furnishing nonpublic information), nonessential or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction (as defined excess assets sold in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance ordinary course of such inquiries or to obtain a Competing Transaction, or business; (iii) agree to or endorse any Competing Transaction, other than with ; or (iv) authorize or permit any Company Representative to take any of the foregoing actions. Company shall notify Parent or an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if hours of any proposal or offeroffer (written or otherwise) regarding, or any inquiry or contactcontact with any person with respect to, constituting or regarding a Competing Transaction is made, and the Shareholder Transaction. Such notice shall promptly inform Parent as to the material details of any such proposal, offer, inquiry or contact, including include the identity of the party making person proposing such Competing Transaction and the terms thereof, and Company shall keep Parent apprised, on a current basis, of the status of any such proposalCompeting Transaction and of any modifications to the terms thereof. From and after the date hereof and until the earlier of the Effective Time or the Termination Date, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact Company and any other written material reasonably relating thereto. The Shareholder EAI shall immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding From and after the provisions of this Section 3.3, a Shareholder who is also a director or officer date hereof and until the earlier of the Effective Time or the Termination Date, Company may take shall not release any action in his capacity as such (including complying with third party from, or exercising his fiduciary duties as waive any provision of, any confidentiality or standstill agreement to which it is a member of the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementparty.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Register Com Inc)
No Solicitation of Transactions. (a) The ShareholderCompany agrees that, subject to the last sentence as of this Section 3.3, agrees that from the date of this Agreement until Agreement, it has, and has caused each officer, director, employee, shareholder, investment banker, attorney and other advisor or representative of the Termination DateCompany and its Subsidiaries (“Company Representatives”) to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted prior to the Shareholder date hereof with respect to any Competing Transaction (as defined below). The Company shall not, directly or indirectlynor shall it permit any of its Subsidiaries to, nor, in case the Shareholder is a corporation or other entity, nor shall it authorize or permit any of its directorsCompany Representative to (i) solicit or initiate, officers encourage, or employees facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any Person other than Parent or Newco (a “Third Party”) to acquire, in any manner, all or any investment bankerportion of the assets or equity of the Company or any Subsidiary, financial advisorhowever structured (provided that this clause (i) shall not preclude the Company and its Subsidiaries from operating in the ordinary course of business consistent with past practice, attorneyit being understood that no (I) merger, accountant or consolidation, other representative retained by it business combination involving the Company or any of its Subsidiaries or (collectivelyII) sale of any meaningful portion of the assets or equity of the Company or any of its Subsidiaries will be deemed to be in the ordinary course of business); (ii) participate in any discussions or negotiations regarding, or furnish to any Third Party any information or data with respect to or access to the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information)properties of, or take any other action to facilitate, any inquiries or knowingly facilitate the making of any proposal or offer with respect tothat constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementhereinafter defined), ; or (iii) enter into or maintain or continue discussions or negotiate any agreement with any person or entity in furtherance of such inquiries or respect to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other than with Parent or transactions contemplated by this Agreement. Notwithstanding the foregoing sentence, if the Company receives an affiliate of Parent. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any unsolicited bona fide, written proposal or offer, or any inquiry or contact, constituting or regarding offer for a Competing Transaction by a Third Party, which the Board of Directors determines in good faith (after consulting the Board of Directors’ independent financial advisor and outside legal counsel, as applicable) (A) is made, reasonably likely to result in terms which are more favorable from a financial point of view to the holders of Shares than the Merger and the Shareholder shall promptly inform Parent as to other transactions contemplated by this Agreement, (B) is reasonably capable of being consummated (provided that the material details of any such proposal, offer, inquiry or contactCompany, including the identity Board of the party making any such proposalDirectors, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying such unsolicited proposal and any material reasonably relating thereto. The Shareholder immediately shall cease contingencies and cause the capability of consummation), (C) that the failure to consider such Competing Transaction would be terminated all existing discussions or negotiations inconsistent with any parties conducted heretofore with respect to a Competing Transaction. Notwithstanding the provisions of this Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the CompanyCompany to the holders of Outstanding Shares under applicable Law and (D) as is not limited by subject to any financing condition (a “Superior Competing Transaction”), then the Company may, in response to an unsolicited request therefor and subject to compliance with this Section 6.2(a) and Section 6.2(b), furnish information with respect to the Company and its Subsidiaries to, and participate in discussions and negotiations directly or through its representatives with, such Third Party if and only if, (I) prior to furnishing any such non-public information to, or entering into any discussions or negotiations with, such Third Party, the Company’s Board of Directors receives from such Third Party a nondisclosure agreement with terms that are at least as restrictive as those pursuant to the Confidentiality Agreement (as defined below) and concurrently provides such information to Parent and (II) the Company shall have complied with this Section 6.2. Under such circumstances, the Company shall be permitted to waive the provisions of any “standstill” agreement between the Merger Agreement.Company and a Third Party to the extent necessary to permit such Third Party to submit an unsolicited Competing Transaction that the Board of Directors believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction. Nothing contained in this Agreement shall prevent the Board of Directors from making any disclosure to its Shareholders to the extent
Appears in 1 contract
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from (a) From and after the date of this Agreement until the Termination Dateearlier of the Closing Time or the termination of this Agreement in accordance with its terms, the Shareholder shall each party to this Agreement will not, directly or indirectly, norand will instruct its officers, in case the Shareholder is a corporation directors, employees, subsidiaries, agents or advisors or other entityrepresentatives (including, shall it authorize or permit any of its directorswithout limitation, officers or employees or any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (collectivelyit), the "REPRESENTATIVES") not to, directly or indirectly, solicit, initiate or take any action intended, designed or reasonably likely to encourage (including by means way of furnishing nonpublic information), or take any other action intended, designed or reasonably likely to facilitate, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of the officers, directors or employees of such party or any of its subsidiaries, or any investment banker, financial advisor, attorney, accountant or other than with Parent representative retained by such party or an affiliate any of Parentsuch party's subsidiaries, to take any such action. The Shareholder Each party to this Agreement shall notify the other parties promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as . Each party to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder this Agreement immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing TransactionTransaction and promptly request that all confidential information furnished on behalf of such party be returned. Each party to this Agreement agrees not to release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the provisions of this contrary in Section 3.3, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of 5.04 the Board of Directors of each party to this Agreement may cause such party to furnish information to, and may participate in discussions or negotiations with, any person that, unsolicited by such party, has submitted a written proposal to such Board of Directors relating to a Competing Transaction, in each case to the Companyextent that the Board of Directors of such party determines in good faith that the failure to do so would cause the Board of Directors of such party to breach its fiduciary duties to such party or its stockholders under applicable Laws after receipt of advice to such effect from independent legal counsel (who may be such party's regularly engaged independent legal counsel) as is and, notwithstanding anything to the contrary contained in this Agreement, any such furnishing of information and participation in discussions or negotiations shall not limited constitute a breach of this Agreement by such party; provided, however, that any party furnishing such information, or participating in such discussions or negotiations shall notify the other promptly of such action and shall, in any such notice, indicate the identity of the person making the written proposal referred to in this Section 5.04, and, in reasonable detail, the terms and conditions of the Merger Agreementsuch written proposal.
Appears in 1 contract
No Solicitation of Transactions. The ShareholderNo Seller, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall notor any Subsidiary thereof, directly or indirectly, northrough any director, in case the Shareholder is a corporation or other entityofficer, shall it authorize or permit any of its directorsemployee, officers or employees or any investment banker, financial advisor, attorney, accountant or other agent or representative retained by it or of any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, Seller shall solicit, initiate or encourage or knowingly facilitate (including by means of furnishing nonpublic non-public information), or take any other action to facilitate, ) any inquiries or the making submission of proposals or offers from any proposal person relating to any acquisition or offer purchase of all or any portion of the Assets (other than in the ordinary course of business) or Business of, or any equity interest in, any Seller, or any merger, consolidation, share exchange, amalgamation, reorganization, recapitalization, tender offer, exchange offer, business combination or other similar transaction involving any Seller, and, other than with Buyer or any of its Affiliates, participate in any discussions or negotiations regarding, or furnish to any other person any information with respect to, or that reasonably may be expected to lead to a proposal otherwise cooperate in any way with, or offer forassist or participate in, facilitate or encourage, any Competing Transaction (as defined in effort or attempt by any other Person to do or seek any of the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parentforegoing. The Shareholder shall promptly (but in any event within 24 hours) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is madeEach Seller shall, and the Shareholder shall promptly inform Parent as to the material details cause any of any such proposaltheir respective representatives or affiliates to, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all or withdrawn any existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transactionany of the foregoing (other than in respect of the transactions contemplated hereby). Sellers shall, within two (2) business days, notify Buyer if any such proposal or offer, or any inquiry or contact with any person with respect thereto, is made and shall, in any such notice to Buyer, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal or offer. Notwithstanding the provisions of this Section 3.3foregoing, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the CompanyCompany shall be permitted in response to an unsolicited bona fide written Acquisition Proposal from any Person received after the date of this Agreement to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person received after the date of this Agreement, if and only to the extent that, (a) as is not limited by the terms Board of Directors of the Merger Company shall have concluded in good faith that such Acquisition Proposal would, if consummated, constitute a Superior Proposal, (b) the Board of Directors of the Company shall have determined in good faith after consultation with outside legal counsel that such action is necessary for such Board of Directors to be deemed to have acted in a manner consistent with its fiduciary duties under the DGCL and (c) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors shall have received from such Person an executed confidentiality agreement containing terms and provisions no less favorable to the Company than those contained in the Mutual Confidentiality and Non-Disclosure Agreement between Buyer (f/k/a Candie’s, Inc.) and the Company, dated as of March 22, 2005 (the “Confidentiality Agreement”). The Company shall, within two (2) business days, notify Buyer in writing of any and all such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated or continued with, any of its representatives, which notice shall set forth the name(s) of such Person(s) and the material terms and conditions of any Acquisition Proposals. The Company shall keep Buyer fully and promptly informed of the status (including amendments or proposed amendments) of any such Acquisition Proposal; provided, that, nothing in this Section 6.1(e) shall permit Sellers to terminate this Agreement (except as specifically provided in Section 13 hereof).
Appears in 1 contract
Samples: Assets Purchase Agreement (Iconix Brand Group, Inc.)
No Solicitation of Transactions. The Shareholder, subject to the last sentence of this Section 3.3, agrees that from (a) From the date of this Agreement until the Termination Dateearlier of (x) the Closing Date or (y) the date on which this Agreement is terminated, other than in connection with the Shareholder Transactions, SPAC agrees that it shall not, directly or indirectlyand shall cause each of its Subsidiaries to not, nor, in case the Shareholder is a corporation or other entity, shall it authorize or (to the extent within its control) permit any of its directors, officers officers, employees, agents or employees or any Representatives (including investment bankerbankers, financial advisorattorneys and accountants), attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, (i) initiate, solicit, initiate facilitate, consider, make or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or otherwise facilitate the making of any proposal offers or offer proposals related to, a Competing Transaction, (ii) enter into, engage in or continue any discussions or negotiations with respect to a Competing Transaction with, or provide any non-public information, data or access to employees to, any Person that has made, or that reasonably may be expected to lead to is considering making, a proposal or offer for, any Competing Transaction (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or respect to obtain a Competing Transaction, or agree (iii) enter into any agreement relating to or endorse any a Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder SPAC shall promptly (but and in any event within 24 hoursone (1) Business Day) notify Parent if any proposal or offer, or any inquiry or contact, constituting or regarding a Competing Transaction is made, Florida orally and the Shareholder shall promptly inform Parent as to the material details in writing after becoming aware of any such proposalsubmissions, offerproposals, inquiry offers or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore inquiries made with respect to a Competing Transaction. Notwithstanding SPAC and its officers and directors shall, and shall instruct and cause its Representatives to, immediately cease and terminate all discussions and negotiations with any Person that may be ongoing with respect to a possible Competing Transaction, other than with respect to the provisions Transactions.
(b) From the date of this Section 3.3Agreement until the earlier of (x) the Closing Date or (y) the date on which this Agreement is terminated, other than in connection with the Transactions, Florida agrees that it shall not, and shall cause each of its Subsidiaries to not, authorize or (to the extent within its control) permit any of its directors, officers, employees, agents or Representatives (including investment bankers, attorneys and accountants), to, directly or indirectly, (i) initiate, solicit, facilitate, consider, make or encourage or otherwise facilitate the making of any offers or proposals related to, an Acquisition Proposal, (ii) enter into, engage in or continue any discussions or negotiations with respect to an Acquisition Proposal with, or provide any non-public information, data or access to employees to, any Person that has made, or that is considering making, a Shareholder who is also proposal with respect to an Acquisition Proposal, or (iii) enter into any agreement relating to an Acquisition Proposal. Florida shall promptly (and in any event within one (1) Business Day) notify SPAC orally and in writing after becoming aware of any submissions, proposals, offers or inquiries made with respect to an Acquisition Proposal. Florida and its officers and directors shall, and shall instruct and cause its Representatives to, immediately cease and terminate all discussions and negotiations with any Person that may be ongoing with respect to a director or officer of possible Acquisition Proposal, other than with respect to the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of the Company) as is not limited by the terms of the Merger AgreementTransactions.
Appears in 1 contract
No Solicitation of Transactions. (a) The Shareholder, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date, the Shareholder shall Company will not, directly or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of and will instruct its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Representatives not to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to(including, without limitation, any proposal or offer to its stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreementbelow), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate authorize or permit any of Parentits Representatives to take any such action. The Shareholder Company shall promptly (but in any event within 24 hours) immediately notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder Company shall promptly immediately inform Parent as to the material details of any such proposal, offer, inquiry or contact, including including, without limitation, the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating theretothereto that contains the principal terms of such proposal or offer. The Shareholder 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. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. Notwithstanding anything to the provisions of contrary in this Section 3.36.05, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Company's Board of Directors of may furnish information to, and enter into discussions and negotiate with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction if the Company's Board of Directors has (i) reasonably concluded after consultation with its financial advisor that such proposal or offer constitutes a Superior Proposal (as defined below), (ii) reasonably concluded, after consultation with its 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 Parent 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 (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Non-Disclosure Agreement; provided, however, that no information may be furnished and no discussions or negotiations may be entered into in the event that the Company has taken any actions inconsistent with this Section 6.05(a); provided further, however, that the Company's Board of Directors shall furnish to Parent all information provided to the person who has made the Superior Proposal to the extent that such information has not limited by been previously provided to Parent and shall keep Parent promptly and reasonably informed as to the terms status of the Merger Agreementany discussions regarding such Superior Proposal.
Appears in 1 contract
No Solicitation of Transactions. The Shareholder(a) Each party to this Agreement agrees that, subject to the last sentence of this Section 3.3, agrees that from and after the date hereof until the earlier of the Effective Time and the termination of this Agreement until the Termination Datepursuant to Article VIII, the Shareholder it shall not, and shall not permit any of its Subsidiaries or any of its or its Subsidiaries' directors, officers or employees to, and shall use its best efforts to cause its investment bankers, attorneys, accountants and other representatives retained by it or any of its Subsidiaries not to, directly or indirectly: (i) solicit, norinitiate 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 a Competing Transaction (as defined below); (ii) enter into or maintain or continue discussions or negotiations with any person or entity in case the Shareholder is furtherance of such inquiries or to obtain a corporation Competing Transaction; (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other entitycontract, shall it agreement or commitment contemplating or otherwise relating to any Competing Transaction; or (iv) authorize or permit any of its directorsthe officers, officers directors or employees of such party or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectivelysuch party, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage (including by means of furnishing nonpublic information), or to take any such action. Each party to this Agreement shall notify the other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or that reasonably may be expected to lead to a proposal or offer for, any Competing Transaction party as promptly as practicable (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate of Parent. The Shareholder shall promptly (but and in any event within 24 hoursone day after such party attains knowledge thereof) notify Parent if any proposal or offer, or any inquiry or contactcontact with any person with respect thereto, constituting or regarding a Competing Transaction is made, and the Shareholder shall promptly inform Parent as to specifying the material details of any such proposal, offer, inquiry or contact, including terms and conditions thereof and the identity of the party making any such proposal, offer, inquiry proposal or contact, and, if in writing, promptly deliver offer or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written (including material reasonably relating theretoamendments or proposed material amendments). The Shareholder Each party to this Agreement immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Each party to this Agreement shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the provisions of contrary in this Section 3.36.04, a Shareholder who is also a director or officer of the Company may take any action in his capacity as such (including complying with or exercising his fiduciary duties as a member of the Board of Directors of Parent or the Company, as the case may be, may furnish, prior to approval of this Agreement, the Merger, the Share Issuance, the Parent Name Change, the New Stock Option Plans Adoption and the Parent Board Appointments at the Company Stockholders' Meeting or the Parent Shareholders' Meeting, as the case may be, information to, and enter into discussions with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction or otherwise facilitate any effort or attempt to make or implement a proposal or offer for a Competing Transaction, if such Board of Directors has (i) determined, in its good faith judgment (after having consulted with a financial advisor of internationally recognized reputation) that such proposal or offer is reasonably likely to lead to a Superior Proposal (as defined below), (ii) determined, in its good faith judgment after consultation with independent legal counsel (who may be such party's regularly engaged independent legal counsel), that, in light of such proposal or offer regarding a Competing Transaction, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to Parent and its shareholders or the Company and its stockholders, respectively, under applicable Law, (iii) provided written notice to the other party of its intent to furnish information or enter into discussions with such person at least 24 hours prior to taking any such action, and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the other party than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not limited include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting such party from satisfying its obligations under this Agreement).
(c) Except as set forth in this Section 6.04(c), the Company Board shall not make a change in the Company Board Recommendation (a "Change in the Company Board Recommendation") in a manner adverse to Parent or Merger Sub 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, prior to the approval of this Agreement and the Merger at the Company Stockholders' Meeting, the Company Board determines, in its good faith judgment prior to the Effective Time and after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), that it is required to make a Change in the Company Board Recommendation to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, the Company Board may recommend a Superior Proposal, but only (i) after providing written notice to Parent (a "Notice of Company Superior Proposal") 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 Board Recommendation and the manner in which it intends (or may intend) to do so, and (ii) if Parent does not, within 48 hours of Parent's receipt of the Notice of Company Superior Proposal, deliver to the Company a binding, written offer that the Company Board determines, in its good faith judgment (after having consulted with independent legal counsel and a financial advisor of internationally recognized reputation) to be at least as favorable to the Company's stockholders as such Superior Proposal. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction under applicable Law or Rule 14d-9 or 14e-2 or that the Company Board determines to comply with its fiduciary duties to the Company and its stockholders will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the terms Company Board in violation of this Section 6.04(c). The obligation of the Merger Company to call, give notice of, convene and hold the Company Stockholders' Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Company Board Recommendation, except in the event that this Agreement is terminated in accordance with Section 8.01(j). The Company shall not submit to the vote of its stockholders any Competing Transaction, or propose to do so, except in the event that this Agreement is terminated in accordance with Section 8.01(j).
(d) Except as set forth in this Section 6.04(d), the Parent Board shall not make a change in the Parent Board Recommendation (a "Change in the Parent Board Recommendation") in a manner adverse to the Company or approve or recommend, or cause or permit Parent to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction. Notwithstanding the foregoing, if, prior to the approval of the Share Issuance, the Parent Name Change, the New Stock Option Plans Adoption and the Parent Board Appointments at the Parent Shareholders' Meeting, the Parent Board determines, in its good faith judgment prior to the Effective Time and after consultation with independent legal counsel (who may be Parent's regularly engaged independent legal counsel), that to make a Change in the Parent Board Recommendation is required to comply with its fiduciary obligations to Parent and its shareholders under applicable Law, the Parent Board may recommend a Superior Proposal, but only (i) after providing written notice to the Company (a "Notice of Parent Superior Proposal") advising the Company that the Parent 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 Parent Board intends to effect a Change in the Parent Board Recommendation and the manner in which it intends (or may intend) to do so, and (ii) if the Company does not, within 48 hours of the Company's receipt of the Notice of Parent Superior Proposal, deliver to Parent a binding written offer that the Parent Board determines, in its good faith judgment (after having consulted with independent legal counsel and a financial advisor of internationally recognized reputation) to be at least as favorable to Parent's shareholders as such Superior Proposal. Any disclosure that the Parent Board may be compelled to make with respect to the receipt of a proposal or offer for a Competing Transaction under applicable Law (including, without limitation, the Singapore Code of Take-overs and Mergers) or Rule 14d-9 or 14e-2 or the requirements of the Securities Industry Counsel or that the Parent Board determines to comply with its fiduciary duties to Parent and its shareholders will not constitute a violation of this Agreement, provided that such disclosure states that no action will be taken by the Parent Board in violation of this Section 6.04(d). The obligation of Parent to call, give notice of, convene and hold the Parent Shareholders' Meeting shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Competing Transaction, or by any Change in the Parent Board Recommendation, except in the event that this Agreement is terminated in accordance with Section 8.01(k). Parent shall not submit to the vote of its shareholders any Competing Transaction, or propose to do so, except in the event that this Agreement is terminated in accordance with Section 8.01(k).
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (St Assembly Test Services LTD)
No Solicitation of Transactions. The Shareholder(a) Notwithstanding anything to the contrary in Section 5.1, and subject to Section 5.3(b), from and after the last sentence date hereof until the Effective Time or, if earlier, the termination of this Section 3.3Agreement in accordance with Article 7, agrees the Company shall not, and shall cause the Company Subsidiaries and the Company Representatives not to, directly or indirectly: (i) solicit, initiate, seek or knowingly encourage, induce or facilitate or take any action to solicit, initiate or seek or knowingly encourage, induce or facilitate any inquiry, expression of interest, proposal or offer that from constitutes, relates to or could reasonably be expected to lead to an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, or that could reasonably be expected to lead to, any Acquisition Proposal with any Person other than Parent or the Purchaser, (iii) furnish to any Person other than Parent or the Purchaser any non-public information in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal or (iv) enter into any agreement, letter of intent or Contract providing for the consummation of any or otherwise relating to any Acquisition Proposal or any proposal, inquiry or offer that could reasonably be expected to lead to an Acquisition Proposal. The Company shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted on or prior to the date of this Agreement with respect to any Acquisition Proposal, and shall promptly after the date of this Agreement instruct each Person that has in the twelve months prior to the date of this Agreement executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of the Company to promptly return or destroy in accordance with the terms of such confidentiality agreement all information, documents and materials relating to the Acquisition Proposal or to the Company or any Company Subsidiary and their respective businesses previously furnished by or on behalf of the Company or any Company Subsidiary or any Company Representatives.
(b) From the date of this Agreement until the Termination Dateearlier of the Acceptance Time or the termination of this Agreement in accordance with its terms, the Shareholder Company shall notpromptly (and in any event within three Business Days) provide Parent with: (i) an oral and a written description of any inquiry, directly expression of interest, proposal or indirectly, nor, in case the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage offer relating to an Acquisition Proposal (including by means of furnishing nonpublic informationany modification thereto), or take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to, or request for information that would reasonably may be expected to lead to a proposal an Acquisition Proposal, that is received by the Company or offer for, any Competing Transaction Company Subsidiary or any Representative of the Company or any Company Subsidiary from any Person (as defined in the Merger Agreement), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate the Purchaser) including in such description the identity of Parentthe Person from which such inquiry, expression of interest, proposal, offer or request for information was received (the “Other Interested Party”); and (ii) a copy of each material written communication and a summary of each material oral communication transmitted on behalf of the Other Interested Party or any of its Representatives to the Company or any Company Subsidiary or any of their Representatives or transmitted on behalf of the Company or any Company Subsidiary or any Representative of the Company or any Company Subsidiary to the Other Interested Party or any of its Representatives. The Shareholder Without limiting the foregoing, the Company shall promptly (but and in any event within 24 hoursthree Business Days) notify Parent orally and in writing if the Company determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.3(c).
(c) Notwithstanding anything to the contrary contained in Section 5.3(a), if at any proposal time following the date hereof and prior to the Acceptance Time (i) the Company has received a bona fide written Acquisition Proposal from a third party, (ii) the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes or offeris reasonably likely to lead to a Superior Proposal and (iii) after consultation with its outside counsel, the Company Board determines in good faith that the failure to take such actions would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, then the Company may take the following actions: (A) furnish information with respect to the Company and any Company Subsidiary 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 not, and shall not allow any Company Subsidiary or any inquiry or contactCompany Representative to, constituting or regarding a Competing Transaction is madedisclose any information to such Person without first entering into an Acceptable Confidentiality Agreement, and the Shareholder (y) shall promptly inform provide to Parent any information concerning the Company or any Company Subsidiary provided to such other Person which was not previously provided to Parent.
(d) Neither the Company Board nor any committee thereof shall (i) withhold, withdraw or qualify (or modify in a manner adverse to Parent) the approval, recommendation or declaration of advisability by the Company Board or any such committee of this Agreement, the Merger or any of the other transactions contemplated hereby, (ii) adopt, approve, recommend or otherwise declare advisable the adoption of any Acquisition Proposal, (iii) submit any Acquisition Proposal or any matter related thereto to the vote of the stockholders of the Company or (iv) resolve or agree to take any such actions (each such action set forth in this Section 5.3(d) being referred to as a “Change of Board Recommendation”).
(e) Notwithstanding anything to the contrary contained herein, the Company Board may, at any time prior to the Acceptance Time, make a Change of Board Recommendation for a reason unrelated to an Acquisition Proposal (it being understood and agreed that any Change of Board Recommendation proposed to be made in relation to an Acquisition Proposal may only be made pursuant to and in accordance with the terms of Section 5.3(f)) if the Company Board has determined in good faith, after consultation with its outside legal counsel, that, in light of facts, events and/or circumstances that have developed since the Agreement Date and prior to the Acceptance Time and of which the Company Board did not, as of the date hereof, have knowledge and that were not reasonably foreseeable by the Company Board as of or immediately prior to the date hereof after due inquiry of the Company’s executive management team (an “Intervening Event”) and taking into account the results of any negotiations with Parent as contemplated by subsection ii. below and any offer from Parent contemplated by subsection iii below, the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law (it being agreed that, for the avoidance of doubt, the approval by the FDA of NDA Number 202-363 (or any resubmission of such NDA or any other NDA relating to the Levadex Product) shall be deemed not to constitute an Intervening Event); provided, however, that the Company Board may not withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent pursuant to the foregoing unless:
i. the Company shall have provided prior written notice to Parent, at least three Business Days in advance (the “Intervening Event Notice Period”) of the Company’s intention to make a Change of Board Recommendation (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Change of Board Recommendation or otherwise give rise to a Triggering Event), which notice shall specify the Company Board reason for proposing to effect such Change of Board Recommendation pursuant to this Section 5.3(e);
ii. prior to effecting such Change of Board Recommendation, the Company shall, and shall cause the Company Representatives to, during the Intervening Event 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 in such a manner that would obviate the need for the Company Board to effect such Change of Board Recommendation; and
iii. Parent shall not have, within the aforementioned three Business Day period, made a written, binding and irrevocable (through the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Company Board has in good faith determined (after consultation with its outside legal counsel and its financial advisor) would obviate the need for the Company Board to effect such Change of Board Recommendation.
(f) Notwithstanding anything to the contrary contained in this Article 5, if the Company receives an Acquisition Proposal that the Company Board determines 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 and conditions of this Agreement that have been delivered to the Company by Parent in writing during the Notice Period provided pursuant to this Section 5.3(f), that are binding and have been irrevocably committed to by Parent in writing, and provided that such Acquisition Proposal did not result from or arise in connection with a material details breach by the Company or any of its Representatives of this Section 5.3, the Company Board may at any time prior to the Acceptance Time, if the Company Board determines in good faith, after consultation with outside counsel, that the failure to take such proposalactions would be inconsistent with the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law, offertake the following action: (y) effect a Change of Board Recommendation with respect to such Superior Proposal or (z) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, inquiry however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (z), and any purported termination pursuant to the foregoing clause (z) shall be void and of no force or contacteffect, unless in advance of or concurrently with such termination the Company pays the Breakup Fee and otherwise complies with the provisions of Sections 7.1(f) and 7.2; and provided further that the Company Board may not withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent pursuant to the foregoing clause (y) or terminate this Agreement pursuant to the foregoing clause (z) unless:
i. the Company shall have provided prior written notice to Parent, at least three Business Days in advance (the “Notice Period”), of the Company’s intention to take such action with respect to such Superior Proposal (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Change of Board Recommendation or otherwise give rise to a Triggering Event), which notice shall specify the material terms and conditions of such Superior Proposal, (including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent Superior Proposal) and shall have contemporaneously provided a copy of the relevant proposed transaction agreements with the party making such proposalSuperior Proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Shareholder immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore including the definitive agreement with respect to such Superior Proposal; and ii. prior to effecting such Change of Board Recommendation or terminating this Agreement to enter into a Competing Transactiondefinitive agreement with respect to such Superior Proposal, the 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 Acquisition Proposal ceases to constitute a Superior Proposal. Notwithstanding 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 5.3(e) with respect to such new written notice (provided that the Notice Period for any subsequent notice shall be shortened from three Business Days to one Business Day). The Company agrees that any violation of the restrictions set forth in this Section 5.3 by any of the Company Representatives shall be deemed to be a material breach of this Agreement (including this Section 5.3) by the Company.
(g) Nothing contained in this Section 5.3 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) or complying with the provisions of this Section 3.3, a Shareholder who is also a director Rule 14d-9 promulgated under the Exchange Act or officer (ii) making any disclosure to the stockholders of the Company may take any action that the Company Board determines to make in his capacity as such good faith (including complying after consultation with or exercising his its outside legal counsel) in order to fulfill its fiduciary duties as a member under, or in order to otherwise comply with, Applicable Law; provided, however, that the content of the Board of Directors of the Company) as is not limited any such disclosure shall be governed by the terms of this Agreement; and provided, further, that any such disclosure (other than 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 of Board Recommendation unless the Company Board expressly reaffirms its recommendation to its stockholders in favor of the Offer and Merger Agreementin such disclosure.
(h) The Company agrees that any violation of the restrictions set forth in this Section 5.3 by any Company Representative, whether or not such Person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Agreement by the Company.
(i) The Company shall not, and shall cause the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to comply with any of the terms of this Section 5.3, and represents that neither it nor any of its Subsidiaries is a party to any such agreement.
Appears in 1 contract
Samples: Merger Agreement (Allergan Inc)
No Solicitation of Transactions. The Shareholder(a) Prior to October 11, subject to the last sentence of this Section 3.3, agrees that from the date of this Agreement until the Termination Date2008, the Shareholder Company and the Stockholders shall not, directly or indirectly, nor, in case and shall cause the Shareholder is a corporation or other entity, shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries (collectively, the "REPRESENTATIVES") Company’s Representatives not to, directly or indirectly, solicit, initiate or encourage (including by means 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(including, without limitation, any proposal or offer to the Stockholders) that constitutes, or that may reasonably may be expected to lead to a proposal or offer forto, any Competing Transaction (as defined in the Merger Agreement)Transaction, or enter into or maintain or continue discussions or negotiate with any person or entity Person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, other than with Parent or an affiliate authorize or permit any of Parentthe Company’s Representatives to take any such action. Any violation of the restrictions set forth in this Section 6.04 by any Representative of the Company, whether or not such Person is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Section 6.04 by the Company. The Shareholder Company shall promptly (but in any event within 24 hours) notify Parent promptly if any proposal or offer, or any inquiry or contactcontact with any Person with respect thereto, constituting or regarding a Competing Transaction is made, and such notice to include the Shareholder shall promptly inform Parent as to identity of the material details of any Person making such proposal, offer, inquiry or contact, including and the identity terms of such Competing Transaction, and shall keep Parent apprised, on a current basis, of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy status of such proposal, offer, inquiry or contact and any other written material reasonably relating theretoCompeting Transaction. The Shareholder 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. Notwithstanding The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) In the event that the Company breaches the provisions of this Section 3.36.04, a Shareholder who is also a director or officer the parties hereto agree that, due to the irreparable harm this may cause the Parent, in addition to any other remedies available to it under law, Parent shall be entitled to seek injunctive relief against the threatened breach of this Agreement. Notwithstanding the foregoing, in the event that the Company may take breaches the provisions of this Section 6.04 and closes any action in his capacity Competing Transaction which is the subject of such breach at any time prior to October 11, 2008, then the Company shall pay to Parent the sum of $2,000,000, which payment shall be due and payable within one (1) Business Day following the closing of such Competing Transaction, plus any out-of-pocket expenses incurred by Parent prior to such date, as such (including complying with or exercising his fiduciary duties liquidated damages and not as a member penalty amount, and in lieu of any other right or remedy that Parent may have against the Board of Directors of the Company) as is not limited by the terms of the Merger Agreementother parties to this Agreement for such breach.
Appears in 1 contract
