No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or 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, Newco or any affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (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 knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to 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 transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Conestoga Enterprises Inc), Agreement and Plan of Merger (Conestoga Enterprises Inc)
No Solicitation of Transactions. (a) The Company agrees thatCompany, as of the date of this Agreementits affiliates --------------------------------------------- and their respective officers, it hasdirectors, employees, representatives and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to agents shall immediately cease and cause to be terminated any existing activities, discussions or negotiations negotiations, if any, with any Third Party (as defined below) parties conducted heretofore with respect to any Competing Transaction (as defined below). The acquisition or exchange of all or any material portion of the assets of, or any equity interest in, the Company shall not, nor shall it permit or any of its Subsidiaries tosubsidiaries or any business combination with or involving the Company or any of its subsidiaries. At any time prior to consummation of the Offer, nor shall it authorize or permit any the Company Representatives to (i) solicit or initiate, encourage, or facilitatemay, directly or indirectly, any inquiries relating tofurnish information and access, in each case only in response to a request for such information or the submission of, any proposal or offer, whether in writing or otherwise, from access to any person other than Parentmade after the date hereof that was not solicited, Newco initiated or knowingly encouraged by the Company or any of its affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) or any of its or their respective officers, directors, employees, representatives or agents after the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiariesdate hereof, taken as a whole, or 5% or more of any class of equity securities of the Company pursuant to a appropriate confidentiality agreements containing terms and conditions (including standstill provisions) that are no less favorable than the terms and conditions contained in the Parent Confidentiality Agreement. Additionally, the Company, its affiliates, officers, directors employees or representatives, may participate in discussions and negotiate with such person concerning any merger, consolidation or other business combinationsale of assets, sale of shares of stock, sale of assets, tender offer, exchange offer capital stock or similar transaction (including an exchange of stock or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% assets) involving the Company or any subsidiary or division of the assets Company, only if such person has submitted a proposal to the Board of Directors of the Company relating to any such transaction and its Subsidiariesthe Board by a majority vote determines in good faith, taken as based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to constitute a whole, or 5% or more breach of the Board of Director's fiduciary duty under applicable law. The Board of Directors shall provide a copy of any class of equity securities such written proposal to Parent immediately after receipt thereof (except such written proposal shall be provided to Parent by 10:30 a.m. on the next business day in cases where such written proposal is not received during normal business hours) and shall notify Parent immediately if any proposal (oral or written) is made (except Parent shall be notified by 10:30 a.m. on the next business day in cases where such proposal is not received during normal business hours) and shall in such notice, indicate in reasonable detail the identity of the Company (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 offeror and the properties of, or take any other action to knowingly facilitate the making terms and conditions of any proposal that constitutes, or may and shall keep Parent promptly advised of all developments which could reasonably be expected to lead toculminate in the Board of Directors withdrawing, any Competing Transaction; modifying or waive amending its recommendation of the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to any Competing TransactionOffer, 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 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, solicit, initiate or knowingly encourage discussions or negotiations with, 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 any material portion or assets, sale of any shares of capital stock or similar transactions (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company. Nothing in this Section 6.5 shall prevent the Board of Directors 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 of Directors shall not recommend that the stockholders of the Company tender their Shares in connection with any such tender offer unless the Board by majority vote shall have determined in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to constitute a breach of the Board of Director's fiduciary duty under applicable law. The Company agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party, unless the Board of Directors determines, based upon the advice of outside counsel, that the failure to make such release or waiver is reasonably likely to constitute a breach of the Board of Director's fiduciary duties under applicable law.
Appears in 2 contracts
Samples: Agreement and Plan (Steel of West Virginia Inc), Agreement and Plan of Merger (Swva Acquisition Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it hashas ceased and terminated, and has caused directed each officer, director or employee ofdirector, or any employee, investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing terminate, all activities, discussions discussions, solicitations, communications or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives or any of its Subsidiaries to (i) solicit solicit, accept or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco or any affiliates Affiliates thereof (any such other Person, a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company Company, whether pursuant to a merger, consolidation or other business combinationcombination or other transaction, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company (any transaction or series of transactions with the foregoing effect, a "“Competing Transaction"”); (ii) participate or engage in any discussions or negotiations regardingwith any Third Party regarding any Competing Transaction, or furnish to any person Third Party any information or data with respect to or access to the properties ofof the Company in connection with a Competing Transaction, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; (iii) withdraw, modify or waive amend in any way adverse to Parent or Newco its recommendation to the provisions of any "standstill" or similar agreement Company’s stockholders that they approve this Agreement and the Merger, except in strict compliance with this Section 6.2, or (iiiiv) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction Transaction, or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and or the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Corvu Corp), Agreement and Plan of Merger (Rocket Software Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company Each Stockholder shall not, nor (subject to Section 7.14) shall it permit any of its Subsidiaries subsidiaries or affiliates to, nor shall it authorize or permit any Company Representatives to (i) solicit of its officers, directors or initiateemployees or any investment banker, encouragefinancial advisor, attorney, accountant, agent or facilitateother representative retained by it or any of its subsidiaries or affiliates to, directly or indirectly, from the date hereof until the Purchase Agreement Closing, (a) solicit, initiate or knowingly encourage (including by way of furnishing information) any inquiries relating or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal (as defined below); (b) participate in any discussions or negotiations regarding any Company Takeover Proposal or (c) enter into any agreement, understanding or arrangement with respect to the submission offoregoing. For purposes of this Agreement, the term "Company Takeover Proposal" means any bona fide proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco Purchaser or any affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) 13-d of the Exchange Act) of all or more than 5% a material portion of the assets of the Company and its subsidiaries, the Company Subsidiaries taken as a whole, or 5% whole or more than fifty percent (50%) of any class of equity securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, sale of assets, tender offer, exchange offer or similar transaction with respect to either the Company or any of the Company Subsidiaries, including any single or multi-step transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% any material portion of the assets of the Company and its Subsidiaries, Subsidiaries taken as a whole, or 5% whole or more than 50% of any class of such equity securities of interest in the Company (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 knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to 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 transactions contemplated by this AgreementCompany.
Appears in 2 contracts
Samples: Equity Purchase and Voting Agreement (General Atlantic Partners LLC), Equity Purchase and Voting Agreement (Infogrames Entertainment Sa)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it hashas ceased and terminated, and has caused directed each officer, director or employee ofdirector, or any employee, investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing terminate, all activities, discussions discussions, solicitations, communications or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below)Transaction. The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives or any of its Subsidiaries to (i) solicit solicit, accept or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco or any affiliates Affiliates thereof (any such other Person, a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company Company, whether pursuant to a merger, consolidation or other business combinationcombination or other transaction, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company (any transaction or series of transactions with the foregoing effect, a "“Competing Transaction"”); (ii) participate or engage in any discussions or negotiations regardingwith any Third Party regarding any Competing Transaction, or furnish to any person Third Party any information or data with respect to or access to the properties ofof the Company in connection with a Competing Transaction, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; (iii) withdraw, modify or waive amend in any way adverse to Parent or Newco its recommendation to the provisions of any "standstill" or similar agreement Company’s stockholders that they approve this Agreement and the Merger, except in strict compliance with this Section 4.2, or (iiiiv) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction Transaction, or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and or the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Netmanage Inc), Agreement and Plan of Merger (Micro Focus (US), Inc.)
No Solicitation of Transactions. (a) The Company agrees that, as of From and after the date of this Agreement until the earlier of the Effective Time of the Merger or the termination of this Agreement in accordance with its terms, the Company, its affiliates and their respective officers, directors, employees, representatives and agents (i) shall cease (and not reopen except as permitted herein) any existing discussions or negotiations, if any, with any parties with respect to any acquisition (other than the transactions contemplated by this Agreement, it has, and has caused each officer, director ) of all or employee any material portion of the assets of, or any investment bankerequity interest in, attorney the Company or any of the Company Subsidiaries or any business combination with the Company or any of the Company Subsidiaries and (ii) shall not, directly or indirectly, (A) solicit or initiate discussions, or, except with respect to a Superior Proposal (as defined below) received by the Company, engage in negotiations with any person or, except with respect to a Superior Proposal received by the Company, take any other advisor action intended, designed or representative reasonably likely to facilitate the efforts of any person, other than Parent and Purchaser, relating to the possible acquisition of the Company or any subsidiary of the Company Subsidiaries (the "Company Representatives")whether by way of merger, to immediately cease and cause to be terminated purchase of capital stock, purchase of assets or otherwise) or any existing activitiesmaterial portion of its or their capital stock or assets, discussions or negotiations with any Third Party (as defined belowB) conducted heretofore except with respect to any Competing Transaction (as defined below). The a Superior Proposal received by the Company, and provided that the Company shall nothas required the party submitting the Superior Proposal to execute a non-disclosure agreement comparable to the Confidentiality Agreement, nor shall it permit provide non-public information with respect to the Company or any of its the Company Subsidiaries toto any person, nor shall it authorize other than Parent and Purchaser, relating to the possible acquisition of the Company or permit any of the Company Representatives to Subsidiaries (i) solicit or initiatewhether by way of merger, encouragepurchase of capital stock, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing purchase of assets or otherwise) or any material portion of its or their capital stock or assets, from (C) enter into an agreement with any person, other than Parent and Purchaser, providing for the possible acquisition of the Company or any of the Company Subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets or (D) except with respect to a Superior Proposal received by the Company, make or authorize any statement, recommendation or solicitation in support of any possible acquisition of the Company or any of the Company Subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any portion of its or their capital stock or assets by any person, other than by Parent and Purchaser or withdraw or modify the recommendation by the Company's Board or Directors with respect to the Offer, this Agreement, the Axiohm Exchange, the Acquisition of Purchaser and the Merger. A "Superior Proposal" shall mean a written proposal that has not been solicited by the Company following the date of this Agreement relating to the possible acquisition of the Company or any of the Company Subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets by any person other than Parentby Parent or Purchaser, Newco or any affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) which proposal is, in the reasonable good faith judgment of the Exchange Act) Board of all or more than 5% Directors of the assets Company, after consultation with its legal and financial advisors, on financial and other terms more favorable to the shareholders of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities than the terms of the Company pursuant to a mergerOffer, consolidation or other business combinationthe Axiohm Exchange, sale the Acquisition of shares of stockPurchaser and the Merger, sale of assetscollectively, tender offer, exchange offer or similar transaction or series of related transactions, and which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as made by a whole, or 5% or more of any class of equity securities of the Company (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 knowingly facilitate the making of any proposal party that constitutes, or may can reasonably be expected to lead to, consummate the transaction on the terms proposed. If the Company or any Competing Transaction; of its subsidiaries receives any offer or waive the provisions of any "standstill" or similar agreement or (iii) proposal to enter into any agreement with respect negotiations relating to any Competing Transactionof the above, the Company shall as promptly as practicable, notify Parent or Purchaser thereof, including information as to the identity of the party making any such offer or proposal and the specific terms of such offer or proposal, as the case may be, and provide Parent or Purchaser with the same information (if any) the Company provides to the party making the Superior Proposal. Notwithstanding the foregoing, following the receipt of an offer or proposal that the Board of Directors of the Company, in the exercise of its reasonable good faith judgement, after consultation with its legal and financial advisors, deems to be a Superior Proposal, the Company may terminate this Agreement under Section 8.1(d) (subject to the Company's obligations pursuant to Section 8.3) and accept such Superior Proposal, and the Board of Directors of the Company may approve or recommend (and, in connection therewith, withdraw or resolve to approve or recommend any Competing Transaction or enter into any agreement requiring it to abandonmodify its approval and recommendation of the Offer, terminate or fail to consummate this Agreement, the Merger Axiohm Exchange, the Acquisition of Purchaser and the other transactions contemplated by this AgreementMerger).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dh Technology Inc), Agreement and Plan of Merger (Ax Acquisition Corp)
No Solicitation of Transactions. (a) The Company agrees thatCompany, as of the date of this Agreementits affiliates and their respective officers, it hasdirectors, employees, representatives and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to agents shall immediately cease and cause to be terminated any existing activities, discussions or negotiations negotiations, if any, with any Third Party (as defined below) parties conducted heretofore with respect to any Competing Transaction (as defined below)acquisition or exchange of all or any material portion of the assets of, or more than 20% of the equity interest in, the Company or any of its subsidiaries or any business combination with or involving the Company or any of its subsidiaries. The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or facilitatemay, directly or indirectly, any inquiries relating tofurnish information and access, in each case only in response to a request for such information or the submission of, any proposal or offer, whether in writing or otherwise, from access to any person other than Parentmade after the date hereof which was not encouraged, Newco solicited or initiated by the Company or any of its affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) or any of its or their respective officers, directors, employees, representatives or agents after the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiariesdate hereof, taken as a whole, or 5% or more of any class of equity securities of the Company pursuant to a appropriate confidentiality agreements, and may participate in discussions and negotiate with such person concerning any merger, consolidation or other business combinationsale of assets, sale of shares of stock, sale of assets, tender offer, exchange offer capital stock or similar transaction (including an exchange of stock or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% assets) involving the Company or any subsidiary or division of the assets Company, if such person has submitted a written proposal to the Board of Directors of the Company relating to any such transaction and its Subsidiariesthe Board determines in good faith, taken as based upon the advice of outside counsel to the Company, that failing to take such action would constitute a whole, or 5% or more of any class of equity securities breach of the Company (a "Competing Transaction"); (ii) participate Board's fiduciary duty under applicable law. The Board shall notify Parent immediately if any such proposal is made and shall in any discussions or negotiations regardingsuch notice, or furnish to any person any information or data with respect to or access to indicate in reasonable detail the properties of, or take any other action to knowingly facilitate identity of the making offeror and the terms and conditions of any proposal that constitutes, or may and shall keep Parent promptly advised of all developments which could reasonably be expected to lead toculminate in the Board of Directors withdrawing, any Competing Transaction; modifying or waive amending its recommendation of the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to any Competing TransactionOffer, 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 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 any material portion or assets, sale of more than 20% of the shares of capital stock or similar transactions (including an exchange of stock or assets) involving the Company or any subsidiary of the Company; 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 recommend that the stockholders of the Company tender their Shares in connection with any such tender offer unless the Board shall have determined in good faith, based upon the advice of outside 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, any confidentiality or standstill agreement to which the Company is a party, unless the Board shall have determined in good faith, based upon the advice of outside counsel, that failing to release such third party or waive such provisions would constitute a breach of the fiduciary duties of the Board of Directors under applicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Goulds Pumps Inc), Agreement and Plan of Merger (Itt Industries Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of From the date hereof until the earlier of termination of this AgreementAgreement or the Closing, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative none of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or facilitatewill, directly or indirectly, whether through any inquiries relating todirector, officer, employee, financial advisor, legal counsel, accountant, other agent or the submission ofrepresentative (as used in this Section 7.3, any proposal or offer, whether in writing "REPRESENTATIVES") or otherwise, from any person other than Parent(A) initiate, Newco solicit or any affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (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 ofencourage, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constituteswith respect to, or may reasonably be expected (B) except to lead the extent required in the exercise of the fiduciary duties of the Board of Directors of the Company or any of its Subsidiaries, under applicable law as advised by independent counsel in connection with an unsolicited proposal, engage or participate in negotiations concerning, provide any nonpublic information or data to, or have any discussions with, any person other than a party hereto or their representatives relating to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (i) acquisition, (ii) tender offer (including a self-tender offer), (iii) enter exchange offer, (iv) merger, (v) consolidation, (vi) acquisition of beneficial ownership of (or the right to vote securities representing) 10% or more of the total voting power of such entity or any of its Subsidiaries, (vii) dissolution, (viii) business combination, (ix) purchase of all or any significant portion of the assets or any division of (or any equity interest in) such entity, or (x) any similar transaction other than the stock purchase contemplated by this Agreement (such proposals, announcements, or transactions being referred to as "ACQUISITION PROPOSALS"). Notwithstanding the foregoing, this Section 7.3 shall not prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any agreement person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (a) the Board of Directors of the Company determines in good faith that such action is so required for the Board of Directors to comply with its fiduciary duties to shareholders imposed by law and the Board has been so advised in writing (with a copy furnished to Delta) by independent, outside counsel, in its judgment and opinion, as being so required, (b) prior to furnishing information to, or entering into discussions and negotiations with, such person or entity, the Company provides written notice to Delta to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (c) the Company keeps Delta informed of the status and all material information with respect to any Competing Transactionsuch discussions or negotiations. Nothing in this Section 7.3 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article IX hereof), approve (y) permit the Company or recommend or resolve any of its Subsidiaries to approve or recommend any Competing Transaction or enter into any agreement requiring Agreement with respect to an Acquisition Proposal for as long as this Agreement remains in effect (it to abandonbeing agreed that for as long as this Agreement remains in effect, terminate none of the Company or fail to consummate any of its Subsidiaries shall enter into any Agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal), or (z) affect any other obligation of the Merger and the other transactions contemplated by Company under this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Delta Galil Industries LTD), Stock Purchase Agreement (Delta Galil Industries LTD)
No Solicitation of Transactions. (a) The Company agrees thatshall not, as of the date of this Agreement, it hasdirectly or indirectly, and has caused each officershall instruct its officers, director directors, employees, subsidiaries, agents or employee ofadvisors or other representatives (including, or without limitation, any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"accountant retained by it), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries not to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating tosolicit, initiate or the submission of, any proposal or offer, whether in writing or otherwise, from any person other than Parent, Newco or any affiliates thereof knowingly encourage (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) including by way of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (a "Competing Transaction"furnishing nonpublic information); (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 knowingly to knowingly facilitate facilitate, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction; , or waive the provisions of any "standstill" or similar agreement or (iii) enter into or maintain or continue discussions or negotiate with any agreement with respect person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, approve or recommend authorize or resolve 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 the Company or any Company Subsidiary, to approve take any such action; provided, however, that nothing contained in this Section 6.05 shall prohibit the board of directors of the Company from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or recommend any exchange offer not made in violation of this Section 6.05 or (ii) with regard to such an offer, after receiving the advice of outside counsel to the effect that the board of directors of the Company is required to do so in order to discharge properly its fiduciary duties, considering, negotiating and approving and recommending to the shareholders of the Company an unsolicited bona fide written acquisition proposal which (A) was not received in violation of this Section 6.06, (B) if executed or consummated would be a Competing Transaction or enter into any agreement requiring it Transaction, (C) is not subject to abandonfinancing and (D) the board of directors of the Company determines in good faith, terminate or fail after receipt of an opinion of its financial advisor to consummate such effect, would result in a transaction more favorable to the Merger and Company's stockholders, than the other transactions transaction contemplated by this AgreementAgreement (any such acquisition proposal, a "SUPERIOR PROPOSAL"). The Company shall notify Parent promptly, and in no event later than one day after receipt, if any proposal or offer, or any inquiry or contact with any person with respect thereto, regarding a Competing Transaction is made. 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. 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 restrictions described in this Section 6.05.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Contour Medical Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative (a “Representative”) of, the Company Representatives to or any Subsidiary to, directly or through another Person, (iA) solicit or initiate, or knowingly encourage, or take any other action designed to, or which could reasonably be expected to, lead to or facilitate, directly or indirectly, any inquiries relating to, or the submission of, of (i) any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco or any affiliates thereof (a "“Third Party"”) to acquire acquire, directly or indirectly in one transaction or a series of transactions, beneficial ownership (as defined under Rule 13(d) of promulgated under the Exchange Act) of all assets or businesses that constitute 15% or more than 5% of either the revenues, net income or assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 515% or more of any class of equity or voting securities of the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 15% of the consolidated assets of the Company pursuant to a merger, consolidation or other business combination, recapitalization, liquidation, dissolution, joint venture, binding share exchange, reorganization, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured or (ii) any other substantially similar transaction or series of related transactions that would reasonably be expected to permit such Third Party to acquire beneficial ownership of more than 5% prevent or materially impair or delay the consummation of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company transactions contemplated by this Agreement (a "“Competing Transaction"”); (iiB) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information or data with respect to or afford access to the properties ofproperties, books or records of the Company or any Subsidiary of the Company, or take otherwise cooperate in any other action way with, any Person relating to or in connection with a Competing Transaction or otherwise knowingly facilitate the making of any proposal that constitutes, effort or may reasonably be expected attempt by any Person to lead to, any make or implement a Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iiiC) enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or similar document, agreement or commitment with respect to 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 transactions contemplated by this Agreement; or (D) waive, amend, modify or grant any release under any standstill or similar agreement or confidentiality agreement relating to a Competing Transaction (other than the Confidentiality Agreement) to which the Company or any of its Subsidiaries is a party. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Subsidiary of the Company or any Representative of the Company or any Subsidiary of the Company shall be a breach of this Section 6.2(a) by the Company. The Company shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Competing Transaction and request the prompt return or destruction of all confidential information previously furnished.
Appears in 1 contract
Samples: Agreement and Plan of Merger (D&e Communications Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). Section 6.4.1 The Company shall not, nor and shall it cause its Subsidiaries not to, and shall not authorize or permit any Company Representative to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 6.4.2, (i) (a) conduct or engage in any discussions or negotiations with, (b) disclose any non-public information relating to the Company or any of its Subsidiaries to, nor shall it authorize (c) afford access to the business, properties, assets, books or permit records of the Company or any Company Representatives to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating of its Subsidiaries to, or the submission of(d) knowingly assist, participate in, facilitate or encourage any effort by, any proposal or offer, whether in writing or otherwise, from any person other than Parent, Newco or any affiliates thereof (a "Third Party") third party that is seeking to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a wholemake, or 5% has made, any Takeover Proposal, (ii) (a) amend or more of grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company pursuant to or any of its Subsidiaries except a merger, consolidation confidentiality agreement as contemplated by Section 6.4.2 or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar (b) approve any transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a wholeunder, or 5% or more of any class of equity securities of third party becoming an “interested shareholder” under, the Company (a "Competing Transaction"); (ii) participate in any discussions or negotiations regardingBCA, or furnish to any person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal except a confidentiality agreement as contemplated by Section 6.4.2 (each, a “Company Acquisition Agreement”). Subject to Section 6.4.2, neither the Company Board nor any committee thereof shall (v) fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Recommendation, (w) recommend a Takeover Proposal, (x) fail to recommend against acceptance of any tender offer or exchange offer for the shares of Company Stock within ten Business Days after the commencement of such offer, (y) make any public statement inconsistent with the Company Recommendation, or (z) resolve or agree to take any of the foregoing actions (any of the foregoing, a “Company Adverse Recommendation Change”). The Company shall, and shall cause its Subsidiaries to, cease immediately and cause to be terminated, and shall not authorize or knowingly permit any Company Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Competing Transaction, approve Takeover Proposal and shall use commercially reasonable efforts to cause any such third party (or recommend its agents or resolve advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to approve return or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger destroy (and the other transactions contemplated by this Agreementconfirm destruction of) all such information.
Appears in 1 contract
No Solicitation of Transactions. (a) The Company agrees that, as of Prior to the date termination and abandonment of this Agreement, it hasneither the Company nor any of the Subsidiaries shall cause their Affiliates that they control, and has caused each officerofficers, director directors, or employee representatives to: (a) solicit, initiate or encourage submission of proposals or offers from any Person other than Acquiror relating to any acquisition or purchase of all or a material part of the stock or assets of, or any investment bankermerger, attorney consolidation, share exchange or other advisor business combination with, or representative any recapitalization, restructuring or issuance or offering of debt or equity securities of, the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or 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, Newco or any affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company Subsidiaries (a an "Competing TransactionAcquisition Proposal"); or (iib) participate in any discussions or negotiations regarding, or furnish to any person Person other than Acquiror and its representatives, any information or data with respect to, or otherwise cooperate in any way or assist, facilitate or encourage, any Acquisition Proposal by any Person other than Acquiror. The Company will immediately cease and cause to be terminated any existing activity, discussions or access negotiations with any Person other than Acquiror and its representatives conducted prior to the properties of, or take any other action to knowingly facilitate the making execution and delivery of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement this Agreement with respect to any Competing TransactionAcquisition Proposal. If, approve notwithstanding the foregoing, the Company should receive any Acquisition Proposal or recommend any inquiry regarding any such proposal from any Person, then the Company shall promptly inform Acquiror. For purposes of this Agreement, the term "Affiliate" means, with respect to any Person, any other Person who directly or resolve to approve indirectly, through one or recommend any Competing Transaction more intermediaries, controls, is controlled by, or enter into any agreement requiring it to abandonis under common control with, terminate or fail to consummate the Merger such Person, and the other transactions contemplated term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by this Agreementcontract or otherwise, and the terms "controlled" and "controlling" have meanings correlative thereto.
Appears in 1 contract
No Solicitation of Transactions. (a) The Company agrees that, as of After the date of this Agreementhereof, the Company shall not, nor shall it haspermit any Company Subsidiary to, and has caused each nor shall it authorize or permit any officer, director director, trustee or employee of, or any investment banker, attorney or other advisor or representative of of, the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives Subsidiary to (i) solicit or initiate, encourage, or 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, Newco the Purchaser Parties or any affiliates Affiliates thereof (a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 515% of the assets of the Company and its subsidiariesthe Company Subsidiaries, taken as a whole, or 515% or more of any class of equity securities of the Company or the Operating Partnership pursuant to a merger, consolidation or other business combination, sale of shares of stockbeneficial interests, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 515% of the assets of the Company and its the Company Subsidiaries, taken as a whole, or 515% or more of any class of equity securities of the Company or the Operating Partnership (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 ofof the Company or any Company Subsidiary with respect to, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement (written or oral) with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement (written or oral) requiring it to abandon, terminate or fail to consummate the REIT Merger, the OP Merger and the other transactions contemplated by this Agreement; provided, however, that notwithstanding anything to the contrary contained herein, (A) the Company and the Operating Partnership may take such actions reasonably necessary or otherwise appropriate in connection with the transactions contemplated by the Industrial Sale Agreement and/or the Commercial Properties Sale and (B) the Company may participate in ordinary course investor relations discussions relating to ordinary course transactions in the Company’s equity securities. Notwithstanding the foregoing sentence, prior to the Effective Time, if the Company receives an unsolicited bona fide, written proposal or offer for a Competing Transaction by a Third Party, which the Company Board determines in good faith (after consulting the Company Board’s independent financial advisor and independent legal counsel) (A) is on terms which are more favorable from a financial point of view to the holders of Common Shares than the REIT Merger and the other transactions contemplated by this Agreement, (B) is not subject to any material contingency, including any contingency relating to financing, to which neither (1) the Company Board determines may likely be overcome or addressed nor (2) the other party thereto has reasonably demonstrated in its written offer its ability to overcome or address, including the receipt of government consents or approvals (including any such approval required under the HSR Act), and (C) is reasonably capable of being consummated (provided, that the Company, including the Company Board, and any of its advisors shall be permitted to contact such Third Party and its advisors and financing sources solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) (a “Superior Competing Transaction”), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 5.4(b), furnish information with respect to the Company and the Company Subsidiaries to, and participate in discussions and negotiations directly or through its representatives with, such Third Party, subject to a confidentiality agreement not less favorable to the Company than the confidentiality and standstill agreements referred to in Section 5.1. Nothing contained in this Agreement shall prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act or from making any other disclosure required by applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Prime Group Realty Trust)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it hashas ceased and terminated, and has caused directed each officer, director or employee ofdirector, or any employee, investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing terminate, all activities, discussions discussions, solicitations, communications or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below)Transaction. The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives or any of its Subsidiaries to (i) solicit solicit, accept or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than ParentEastern, Newco or any affiliates Affiliates thereof (any such other Person, a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company Company, whether pursuant to a merger, consolidation or other business combinationcombination or other transaction, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company (any transaction or series of transactions with the foregoing effect, a "“Competing Transaction"”); (ii) participate or engage in any discussions or negotiations regardingwith any Third Party regarding any Competing Transaction, or furnish to any person Third Party any information or data with respect to or access to the properties ofof the Company in connection with a Competing Transaction, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; (iii) withdraw, modify or waive amend in any way adverse to Eastern or Newco its recommendation to the provisions of any "standstill" or similar agreement Company’s stockholders that they approve this Agreement and the Merger, except in strict compliance with this Section 4.2, or (iiiiv) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction Transaction, or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and or the other transactions contemplated by this Agreement.
Appears in 1 contract
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), 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 heretofore prior to the date hereof with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives or any Subsidiary to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco or any affiliates Affiliates thereof (a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 520% of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 520% or more of any class of equity securities of the Company 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 520% of the assets of the Company and its Subsidiaries, taken as a whole, or 520% or more of any class of equity securities of the Company (a "“Competing Transaction"”); (ii) participate in any discussions or negotiations regarding, or furnish to any person Person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to 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 transactions contemplated by this Agreement. Notwithstanding the foregoing sentence, if the Company receives a bona fide, written proposal or 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) (A) is 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 other transactions contemplated by this Agreement and (B) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation)(a “Superior Competing Transaction”), then the Company may, in response to an unsolicited request therefor and subject to compliance with 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. Notwithstanding the foregoing, the Company shall not provide any non-public information to any such Third Party unless the Company provides such non-public information pursuant to 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 Newco. The Company shall be permitted to waive the provisions of any “standstill” agreement between the Company and a Third Party to the extent necessary to permit such Third Party to submit a 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 complying with Rule 14d-9 and Rule l4e-2 promulgated under the Exchange Act or from making any disclosure to its shareholders required by applicable law, rule or regulation or by the rules of the American Stock Exchange.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hector Communications Corp)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it hasand its Subsidiaries shall, and has caused the Company and its Subsidiaries shall cause each officerof its officers, director or employee ofdirectors, or any employees, investment bankerbankers, attorney attorneys or other advisor advisors or representative of the Company or any subsidiary (the "Company Representatives")representatives to, to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore prior to the date hereof with respect to any Competing Transaction Acquisition Proposal (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives to or any of its Subsidiaries to, (i) solicit or initiate, or take any action to knowingly encourage, facilitate or facilitateinduce, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco Merger Sub or any affiliates Affiliates thereof (a "“Third Party"”) to acquire beneficial ownership (as defined determined under Rule 13(d) 13d-3 of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class of equity securities of the Company 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class of equity securities of the Company (a "Competing Transaction"an “Acquisition Proposal”); (ii) participate in any discussions or negotiations regardingregarding any Acquisition Proposal, or furnish to any person Person any non-public information or data with respect to or access to the properties of, or take any other action to knowingly facilitate of the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing TransactionCompany in connection with an Acquisition Proposal; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement agreement, arrangement or understanding with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction Acquisition Proposal or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement; or (iv) make a Board Recommendation Change. Notwithstanding the foregoing sentence or any other provision of this Agreement, if, (A) after the date hereof and prior to the receipt of stockholder approval of this Agreement, the Company receives a bona fide Acquisition Proposal by a Third Party and such Acquisition Proposal did not result, directly or indirectly, from a breach of this Section 7.2, (B) the Company Board or any Committee determines in good faith (after consulting outside legal and financial advisors) that such Acquisition Proposal constitutes, or would reasonably be expected to lead to a Superior Acquisition Proposal, and (C) the Company receives from such Third Party an executed confidentiality agreement having provisions that are no less restrictive than those of the Confidentiality Agreement (except with respect to any “standstill” provision or other provision having similar effect in the Confidentiality Agreement), then the Company may, in response to such Acquisition Proposal, subject to compliance with this Section 7.2 and after giving notice to Parent, (x) furnish information or data or access with respect to the Company and its Subsidiaries to, and (y) participate in discussions and negotiations directly or through its representatives with, such Third Party; provided that the Company shall provide or make available, to the extent not previously provided or made available to Parent or its representatives, to Parent any material non-public information with respect to the Company or any of its Subsidiaries that is provided to the Third Party making such Acquisition Proposal prior to or substantially concurrently with the time it is provided or made available to such Third Party; provided further, however, that nothing in this Section 7.2 shall require the Company to provide or make available to Parent information that (i) it is not legally permitted to disclose or the disclosure of which would contravene any applicable Law or binding order or (ii) the Company determines, in its good faith judgment, would constitute trade secrets or other material information that is competitively sensitive.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Comtech Telecommunications Corp /De/)
No Solicitation of Transactions. (a) The Company agrees that, Except as of the date of contemplated or as otherwise permitted by this Agreement, it hasneither Seller nor CSC shall, and has caused each nor shall any of them permit any of its Subsidiaries to, nor shall any of them authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company of, either Seller or CSC or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives Subsidiary to (i) solicit or initiate, encourage, or 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, Newco Buyer or any affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of all or more than 5% any of the assets of the Company and its subsidiaries, taken as a wholePurchased Assets, or 5% or more of any class of equity securities of the Company either Seller or CSC 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (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 knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement , or (iii) enter into any agreement with respect to 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 transactions contemplated by this Agreement. Notwithstanding the foregoing sentence, if CSC or either Seller receives an unsolicited bona fide, written proposal or offer for a Competing Transaction by a Third Party, which CSC's Board of Directors determines in good faith (after consulting CSC's Board of Directors' independent financial advisor) (A) is reasonably likely to result in terms which are more favorable from a financial point of view to CSC than the transactions contemplated by this Agreement, and (B) is reasonably capable and reasonably likely of being consummated (provided that CSC, including CSC's Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) (a "Superior Competing Transaction"), then CSC, CST and CCI may, in response to an unsolicited request therefor and subject to compliance with Section 4.3(b), furnish information with respect to CSC, CST and CCI to, and participate in discussions and negotiations directly or through its representatives with, such Third Party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fairpoint Communications Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives")Company, to immediately cease and cause to be terminated any all existing activities, discussions discussions, solicitations, communications or negotiations with any Third Party (as defined below) conducted heretofore prior to the date hereof with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives to or any of its Subsidiaries to, (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco or any affiliates Affiliates thereof (a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class of equity securities of the Company 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class of equity securities of the Company (a "“Competing Transaction"”); (ii) participate or engage in any discussions or negotiations regardingwith any Third Party regarding any Competing Transaction, or furnish to any person Third Party any information or data with respect to or access to the properties ofof the Company in connection with a Competing Transaction, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction Transaction, or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing sentence or anything to the contrary in this Agreement, if the Company receives (in the absence of any violation of this Section 6.2) a bona fide, written proposal or offer for a Competing Transaction by a Third Party prior to the receipt of the Company Shareholder Approval, which the Special Committee determines in good faith (after consulting the Special Committee’s independent financial advisor) (A) is 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 other transactions contemplated by this Agreement, and (B) is reasonably capable of being consummated (provided, that the Company, including the Special Committee, and any of its advisors, shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) (a “Superior Competing Transaction”), then the Company may, in response to an unsolicited request therefor and subject to compliance with 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. Notwithstanding the foregoing, the Company shall not provide any non-public information to any such Third Party unless the Company provides such non-public information pursuant to a nondisclosure agreement. The Company shall be permitted to waive the provisions of any “standstill” agreement between the Company and a Third Party to the extent necessary to permit such Third Party to submit a Competing Transaction that the Special Committee believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction. Nothing contained in this Agreement shall prevent the Special Committee from (i) complying with any applicable Law, rule or regulation, including, without limitation, Rule 14d-9 and Rule l4e-2 promulgated under the Exchange Act, (ii) making any disclosure to its shareholders required by applicable Law, rule or regulation or by the rules and regulations of NASDAQ, or (iii) otherwise making such disclosure to the Company’s shareholders or otherwise that the Special Committee (after consultation with counsel) concludes in good faith is necessary in order to comply with its fiduciary duties to the Company’s shareholders under applicable Law.
Appears in 1 contract
No Solicitation of Transactions. (a) The Company agrees shall, and shall cause its Subsidiaries and their respective officers, directors, management employees, and representatives and agents engaged by the Company in connection with the transactions contemplated hereby to, immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any direct or indirect acquisition of or exchange for (i) all or any material portion of the assets of the Company or its Subsidiaries, (ii) more than 15% of the outstanding material equity interest in the Company, (iii) any material equity interest in any of the Subsidiaries of the Company, or (iv) any merger, consolidation or other business combination transaction with or involving the Company or any of its Subsidiaries (each, a "Transaction"). Neither the Company or any of its Subsidiaries, nor any of its or their respective officers, directors, management employees or representatives and agents engaged by the Company in connection with the transactions contemplated hereby, shall, directly or indirectly, encourage, solicit, participate in, facilitate or initiate discussions or negotiations with, or provide any information to, any Person or group (other than Parent and Sub or any designees of Parent or Sub) concerning any Transaction; provided, that, as the Company (and its Subsidiaries and its and their respective officers, directors, employees, representatives or agents) may participate in negotiations or discussions with, and provide information to, any Person concerning a Transaction submitted in writing by such Person to the Board of Directors of the Company after the date of this Agreement if (A) such Transaction was not solicited, initiated, facilitated or encouraged in violation of this Agreement, (B) the Board of Directors of the Company, in its good faith judgment, believes that such Transaction is reasonably likely to result in a Superior Transaction and (C) the Company complies with the other provisions of this Section 5.4. Nothing contained in this Section 5.4 shall prohibit the Board of Directors of the Company from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer. Unless prohibited from doing so pursuant to a confidentiality letter in effect on the date of this Agreement, the Company shall notify Parent immediately if it hasreceives any unsolicited proposal concerning a Transaction, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative the identity of the person making any such proposal and all the terms and conditions thereof and shall keep Parent promptly advised of all developments relating thereto. If the Company or any subsidiary (is so prohibited, the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall promptly advise the person making the proposal that it permit any of its Subsidiaries to, nor shall it authorize will not participate in negotiations or permit any Company Representatives discussions with or provide information to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any such person other than Parent, Newco or any affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of unless such person authorizes the Company and its subsidiaries, taken to comply with the preceding sentence as a whole, or 5% or more of any class of equity securities of the Company 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, which is structured to permit if such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (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 knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to 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 transactions contemplated by this Agreementprohibition did not exist.
Appears in 1 contract
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this AgreementNovember 21, 2001, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or 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, Newco or any affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (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 knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement agreement; or (iii) enter into any agreement with respect to 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 transactions contemplated by this Agreement.. 41
Appears in 1 contract
Samples: Agreement and Plan of Merger (Conestoga Enterprises Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this AgreementNovember 21, 2001, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company RepresentativesCOMPANY REPRESENTATIVES"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or 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, Newco or any affiliates thereof (a "Third PartyTHIRD PARTY") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (a "Competing TransactionCOMPETING 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 knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement agreement; or (iii) enter into any agreement with respect to 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 transactions contemplated by this Agreement.. 41
Appears in 1 contract
Samples: Agreement and Plan of Merger (D&e Communications Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). Section 6.4.1 The Company shall not, nor and shall it cause its Subsidiaries not to, and shall not authorize or permit any Company Representative to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 6.4.2, (i) (a) conduct or engage in any discussions or negotiations with, (b) disclose any non-public information relating to the Company or any of its Subsidiaries to, nor shall it authorize (c) afford access to the business, properties, assets, books or permit records of the Company or any Company Representatives to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating of its Subsidiaries to, or the submission of(d) knowingly assist, participate in, facilitate or encourage any effort by, any proposal or offer, whether in writing or otherwise, from any person other than Parent, Newco or any affiliates thereof (a "Third Party") third party that is seeking to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a wholemake, or 5% has made, any Takeover Proposal, (ii) (a) amend or more of grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company pursuant to or any of its Subsidiaries except a merger, consolidation confidentiality agreement as contemplated by Section 6.4.2 or other business combination, sale of shares of stock, sale of assets, tender offer, exchange offer or similar (b) approve any transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a wholeunder, or 5% or more of any class of equity securities of third party becoming an "interested shareholder" under, the Company (a "Competing Transaction"); (ii) participate in any discussions or negotiations regardingBCA, or furnish to any person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal except a confidentiality agreement as contemplated by Section 6.4.2 (each, a "Company Acquisition Agreement"). Subject to Section 6.4.2, neither the Company Board nor any committee thereof shall (v) fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Recommendation, (w) recommend a Takeover Proposal, (x) fail to recommend against acceptance of any tender offer or exchange offer for the shares of Company Stock within ten Business Days after the commencement of such offer, (y) make any public statement inconsistent with the Company Recommendation, or (z) resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to, cease immediately and cause to be terminated, and shall not authorize or knowingly permit any Company Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Competing Transaction, approve Takeover Proposal and shall use commercially reasonable efforts to cause any such third party (or recommend its agents or resolve advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to approve return or recommend any Competing Transaction or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger destroy (and the other transactions contemplated by this Agreementconfirm destruction of) all such information.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Mines Management Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives")Company, to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore prior to the date hereof with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives to or any of its Subsidiaries to, (i) solicit or initiate, encourage, or facilitatefacilitate or induce, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than Parent, Newco Merger Sub or any affiliates Affiliates thereof (a "“Third Party"”) to acquire beneficial ownership (as defined determined under Rule 13(d) 13d-3 of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class of equity securities of the Company or any of its Subsidiaries 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class of equity securities of the Company or any of its Subsidiaries (a "“Competing Transaction"”); (ii) participate in any discussions or negotiations regardingregarding any Competing Transaction, or furnish to any person Person any information or data with respect to or access to the properties ofof the Company or any of its Subsidiaries in connection with a Competing Transaction, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement agreement, arrangement or understanding with respect to any Competing Transaction, approve approve, endorse or recommend or resolve to approve or recommend any Competing Transaction Transaction, or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing sentence, if, prior to the receipt of shareholder approval of this Agreement, the Company receives a bona fide, written proposal or offer for a Competing Transaction (for purposes of this sentence the references to “15%” in the definition of “Competing Transaction” shall be deemed to be references to “50%”) by a Third Party, which the Company Board determines in good faith (after consulting the Company Board’s independent financial advisor and outside legal counsel) (A) is reasonably likely to result in terms that are more favorable from a financial point of view to the holders of shares of Company Capital Stock than the Merger and the other transactions contemplated by this Agreement, and (B) is reasonably capable of being consummated (provided, that the Company, including the Company Board, and any of its advisors, shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) (a “Superior Competing Transaction”), then the Company may, in response to an unsolicited request therefor and subject to compliance with 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. Notwithstanding the foregoing, the Company shall not provide any non-public information to any such Third Party unless the Company provides such non-public information pursuant to a nondisclosure agreement and unless any such non-public information is first provided to Parent. With respect to any such nondisclosure agreement entered into after the date hereof, the terms shall be no more favorable to the Third Party than the Confidentiality Agreement is to Parent. The Company shall be permitted to waive the provisions of any “standstill” agreement between the Company and a Third Party to the extent necessary to permit such Third Party to submit a Competing Transaction that the Company Board believes, in its good faith judgment, is reasonably likely to result in a Superior Competing Transaction. Nothing contained in this Agreement shall prevent the Company Board from (i) complying with any applicable Law, rule or regulation, including, without limitation, Rule 14d-9 and Rule l4e-2 promulgated under the Exchange Act, (ii) making any disclosure to its shareholders required by applicable Law, rule or regulation or by the rules and regulations of the NYSE, or (iii) otherwise making such disclosure to the Company’s shareholders or otherwise that the Company Board (after consultation with counsel) concludes in good faith is necessary in order to comply with its fiduciary duties to the Company’s shareholders under applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Iowa Telecommunications Services Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of After the date of this Agreementhereof, the Company shall not, nor shall it haspermit any Company Subsidiary to, and has caused each nor shall it authorize or permit any officer, director director, trustee or employee of, or any investment banker, attorney or other advisor or representative of of, the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives Subsidiary to (i) solicit or initiate, encourage, or 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, Newco the Purchaser Parties or any affiliates Affiliates thereof (a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 515% of the assets of the Company and its subsidiariesthe Company Subsidiaries, taken as a whole, or 515% or more of any class of equity securities of the Company or the Operating Partnership pursuant to a merger, consolidation or other business combination, sale of shares of stockbeneficial interests, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 515% of the assets of the Company and its the Company Subsidiaries, taken as a whole, or 515% or more of any class of equity securities of the Company or the Operating Partnership (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 ofof the Company or any Company Subsidiary (other than such access which is granted to all Persons) with respect to, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement (written or oral) with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction or enter into any agreement (written or oral) requiring it to abandon, terminate or fail to consummate the REIT Merger, the OP Merger and the other transactions contemplated by this Agreement; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Company may participate in ordinary course investor relations discussions relating to ordinary course transactions in the Company’s equity securities. Notwithstanding the foregoing sentence, prior to the Effective Time, if the Company receives an unsolicited bona fide, written proposal or offer for a Competing Transaction by a Third Party, which the Company Board determines in good faith (after consulting the Company Board’s independent financial advisor and independent legal counsel) (A) is on terms which are more favorable from a financial point of view to the holders of Common Shares than the REIT Merger and the other transactions contemplated by this Agreement, (B) is not subject to any material contingency, including any contingency relating to financing, to which neither (1) the Company Board determines may likely be overcome or addressed nor (2) the other party thereto has reasonably demonstrated in its written offer its ability to overcome or address, including the receipt of government consents or approvals (including any such approval required under the HSR Act), and (C) is reasonably capable of being consummated (provided, that the Company, including the Company Board, and any of its advisors shall be permitted to contact such Third Party and its advisors and financing sources solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) (a “Superior Competing Transaction”), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 5.4(b) and Section 5.4(c), furnish information with respect to the Company and the Company Subsidiaries to, and participate in discussions and negotiations directly or through its representatives with, such Third Party, subject to a confidentiality agreement not less favorable to the Company than the confidentiality and standstill agreement referred to in Section 5.1. Nothing contained in this Agreement shall prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act or from making any other disclosure required by applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Prime Group Realty Trust)
No Solicitation of Transactions. (a) The Company agrees that, as of During the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of period beginning on the Company or any subsidiary (Financing Contingency Release Date to the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Effective Time the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives or any of its Subsidiaries to (i) solicit solicit, accept or initiate, encourage, or facilitate, directly or indirectly, any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person Person other than ParentEastern, Newco or any affiliates Affiliates thereof (any such other Person, a "“Third Party"”) to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% fifteen percent (15%) of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company Company, whether pursuant to a merger, consolidation or other business combinationcombination or other transaction, sale of shares of stock, sale of assets, tender offer, exchange offer or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% fifteen percent (15%) of the assets of the Company and its Subsidiaries, taken as a whole, or 5% fifteen percent (15%) or more of any class or series of equity securities of the Company (any transaction or series of transactions with the foregoing effect, a "“Competing Transaction"”); (ii) participate or engage in any discussions or negotiations regardingwith any Third Party regarding any Competing Transaction, or furnish to any person Third Party any information or data with respect to or access to the properties ofof the Company in connection with a Competing Transaction, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; (iii) withdraw, modify or waive amend in any way adverse to Eastern or Newco its recommendation to the provisions of any "standstill" or similar agreement Company’s stockholders that they approve this Agreement and the Merger, except in strict compliance with this Section 4.2, or (iiiiv) enter into any agreement with respect to any Competing Transaction, approve or recommend or resolve to approve or recommend any Competing Transaction Transaction, or enter into any agreement requiring it to abandon, terminate or fail to consummate the Merger and or the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Netmanage Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company Representatives to or any Subsidiary of the Company ("Company Representatives") to, directly or indirectly, (i) solicit or initiate, encourage, or facilitate, directly or indirectly, facilitate any inquiries relating to, or the submission of, any proposal or offer, whether in writing or otherwise, from any person other than Parent, Newco or any affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 520% of the assets of the Company and its subsidiariesSubsidiaries, taken as a whole, or 520% or more of any class of equity securities of the Company 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 520% of the assets of the Company and its Subsidiaries, taken as a whole, or 520% or more of any class of equity securities of the Company (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 knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to 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 transactions contemplated by this Agreement. Notwithstanding the foregoing sentence, if prior to obtaining the Company Stockholder Approval the Company receives a bona fide, written proposal or offer for a Competing Transaction by a Third Party that did not result from a breach of this Section 6.2(a), which the Board of Directors of the Company determines in good faith (after consulting the Board of Directors' independent financial advisor and outside counsel) (A) is 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 Spin-Off and the other transactions contemplated by this Agreement and (B) is reasonably capable of being consummated (provided that the Company, including the Board of Directors, and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation) (a "Superior Competing Transaction"), then the Company may, in response to an unsolicited request therefor and subject to compliance with Section 6.2(c), 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 provided that the Company and such Third Party enter into a confidentiality agreement no less favorable to the Company than the confidentiality agreement entered into between the Company and Parent on November 29, 2001 (the "Confidentiality Agreement"). Without limiting the foregoing, the Company shall be responsible for any action that is in violation of or inconsistent with the restrictions set forth in this Section 6.2(a) by any Company Representative, whether or not such person is purporting to act on behalf of the Company or otherwise. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ivex Packaging Corp /De/)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company RepresentativesCOMPANY REPRESENTATIVES"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or 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, Newco or any affiliates thereof (a "Third PartyTHIRD PARTY") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or more than 5% of the assets of the Company and its subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company 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, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% of the assets of the Company and its Subsidiaries, taken as a whole, or 5% or more of any class of equity securities of the Company (a "Competing TransactionCOMPETING 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 knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement with respect to 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 transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (D&e Communications Inc)
No Solicitation of Transactions. (a) The Company agrees that, as of the date of this Agreement, it has, and has caused each officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company or any subsidiary (the "Company Representatives"), to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party (as defined below) conducted heretofore with respect to any Competing Transaction (as defined below). The Company its Subsidiaries shall not, nor and shall it permit any of its Subsidiaries cause their respective Affiliates not to, nor shall it authorize or permit any Company Representatives to (i) solicit or initiate, encourage, or facilitate, directly or indirectly, through any inquiries relating toofficer, director, employee, investment banker, financial advisor, attorney, accountant or the submission of, other representative of any proposal or offer, whether in writing of them or otherwise, from initiate, solicit or encourage, including by way of furnishing non-public information or assistance, or participate in any person discussion or 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 other than Parent, Newco or any affiliates thereof (the Purchaser with respect to a "Third Party") to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) sale of all or more than 5% any significant portion of the assets of the Company and or any of its subsidiaries, taken as a wholeSubsidiaries, or 5% or more of any class of equity securities of the Company pursuant to a merger, consolidation or other consolidation, business combination, sale of shares of stock, sale of assets, tender offer, exchange offer all or similar transaction or series of related transactions, which is structured to permit such Third Party to acquire beneficial ownership of more than 5% any portion of the assets capital stock of the Company and or any of its Subsidiaries, taken as a wholeor the liquidation or similar extraordinary transaction with respect to the Company or any of its Subsidiaries (each, or 5% or more an “Acquisition”), provided, that if any time prior to the date that the Company Stockholder Approval is obtained, the Board of any class of equity securities Directors of the Company, in the exercise of its fiduciary duties, determines in good faith, after consultation with outside counsel, that to do otherwise would not be in the best interests of the Company’s stockholders, the Company may, in response to a Superior Proposal which did not result from a breach of this Section 5.5, and subject to providing prior notice of its decision to the Purchaser, (i) furnish information with respect to the Company to the person making the Superior Proposal pursuant to a "Competing Transaction"); customary confidentiality agreement, and (ii) participate in any discussions or negotiations regardingregarding such Superior Proposal. The Company shall notify the Purchaser orally, within one (1) Business Day, and in writing, as promptly as practicable, of all relevant terms of any inquiry or furnish proposal by a third party to do any of the foregoing that the Company or any of its respective Affiliates or any of its respective officers, directors, partners, managers, employees, investment bankers, financial advisors, attorneys, accountants or other representatives may receive relating to any person any information of such matters. In the event such inquiry or data with respect to or access proposal is in writing, the Company shall deliver to the properties of, Purchaser a copy of such inquiry or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Competing Transaction; or waive the provisions of any "standstill" or similar agreement or (iii) enter into any agreement together with respect to 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 transactions contemplated by this Agreementsuch written notice.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ems Technologies Inc)
