No Solicitation or Negotiation. Each of Seller and Parent covenants and agrees that between the date of this Agreement and the Closing neither it nor any of its Affiliates, officers, directors, representatives or agents will, subject to the fiduciary duties of its Board of Directors, (a) initiate the submission of any Acquisition Proposal, (b) enter into any agreement with respect to any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (with respect to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the Business.
Appears in 1 contract
No Solicitation or Negotiation. Each of Seller and Parent covenants and agrees that between Except as set forth in this Section 6.1, the date of this Agreement and the Closing neither Company shall not, nor shall it nor (i) authorize or permit any of its AffiliatesSubsidiaries or (ii) authorize or knowingly permit any of its or its Subsidiaries' respective directors, officers, employees, investment bankers, attorneys, accountants or other advisors, agents or representatives (such directors, representatives officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, "Representatives") to, directly or agents willindirectly:
(i) solicit, subject initiate, encourage or take any other action to facilitate any inquiries or the fiduciary duties of its Board of Directors, (a) initiate the submission making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Company Acquisition Proposal, including without limitation (bA) enter into approving any transaction under Section 203 of the DGCL, (B) approving any person becoming an "interested stockholder" under Section 203 of the DGCL, or (C) amending or granting any waiver or release under any standstill or similar agreement with respect to any Company Common Stock, Parent ADSs or Parent Ordinary Shares, respectively; or
(ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any person or permit any person access to any information with respect to, assist or participate in any effort or attempt by any person with respect to, or otherwise cooperate in any way with, any Company Acquisition Proposal. Notwithstanding the foregoing, or prior to the adoption of this Agreement at the Company Stockholders Meeting (cthe "Specified Time"), the Company may, to the extent required by the fiduciary obligations of the Company Board, as determined in good faith by the Company Board, after consultation with outside counsel, in response to a Qualifying Proposal that did not result from a breach by the Company of this Section 6.1, and subject to compliance with Section 6.1(c), (x) participate in negotiations with, or provide furnish information concerning Seller, Parent (with respect to the Business or Company to the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller person making such Qualifying Proposal and Parent will promptly communicate its Representatives pursuant to Buyer any solicitation or inquiry received by it a confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal participate in discussions or inquiry by advising the Person making negotiations with such proposal or inquiry of the terms of this Section 7.6person and its Representatives regarding such Qualifying Proposal. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the Business.-45-
Appears in 1 contract
No Solicitation or Negotiation. Each Subject to the terms of Seller Section 5.3(b), from the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company and its Subsidiaries shall not, and shall not authorize or permit any of their respective Representatives to, directly or indirectly, (i) solicit, initiate, propose or knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or offer with respect to, that constitutes or could reasonably be expected to lead to, an Acquisition Proposal; (ii) furnish to any Person (other than Parent, Merger Sub or any designees of Parent covenants or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries or afford to any Person access to the business, properties, assets, books, records or personnel, of the Company or any of its Subsidiaries, in any such case with the intent to knowingly induce the making, submission or announcement of, or to knowingly encourage or knowingly facilitate, any proposal or offer with respect to, that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (or inquiries, proposals or offers that would reasonably be expected to lead to an Acquisition Proposal), in each case, other than informing such Persons of the existence of the provisions contained in this Section 5.3 and agrees contacting the person making the Acquisition Proposal solely in order to clarify (but not to engage in negotiations or provide non-public information) any ambiguous terms and conditions of the Acquisition Proposal that between are necessary to determine whether the Acquisition Proposal constitutes a Superior Proposal; (iv) approve, endorse or recommend an Acquisition Proposal; or (v) approve, recommend or enter into, or propose to approve, recommend to enter into, any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction (including any “clean team” or similar arrangement), other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Subject to the following two sentences of this Section 5.3(a), and subject to the terms of Section 5.3(b), promptly (and in any event within two Business Days) following the execution of this Agreement, the Company shall request the return or destruction of all non-public information concerning the Company or its Subsidiaries theretofore furnished to any such Person (other than Parent, the Guarantors, the Financing Sources and their respective Representatives and Affiliates) with whom a confidentiality agreement was entered into at any time prior to the date hereof with respect to an Acquisition Proposal, and shall immediately cease and shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to immediately (x) cease any discussions, communications or negotiations with any Person (other than the Parties and their respective Representatives) in connection with an Acquisition Proposal (or proposals or offers that could reasonably be expected to lead to an Acquisition Proposal) by such Person, in each case that exists as of the date of this Agreement and the Closing neither it nor any of its Affiliates, officers, directors, representatives or agents will, subject to the fiduciary duties of its Board of Directors, (ay) initiate the submission shut off all access of any Acquisition Proposal, Person (bother than the Parties and their respective Representatives) enter into any agreement with respect to any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (electronic data room maintained by the Company with respect to the Business or Transaction. From the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate date of this Agreement until the earlier to Buyer any solicitation or inquiry received by it occur of the termination of this Agreement pursuant to Article VIII and the terms of any proposal or inquiry that it may receive in respect of any Acquisition ProposalEffective Time, or of any such information requested from it, or of any such negotiations or discussions being sought the Company will be required to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amendedenforce, and the rules and regulations thereunder (the “Exchange Act”)) ofwill not be permitted to waive, terminate or the right to acquire beneficial ownership ofmodify, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality standstill or standstill agreement relating similar provision that prohibits or purports to prohibit a proposal being made to the Company Board (or affecting any committee thereof, including the BusinessSpecial Committee) unless the Company Board (or any committee thereof, including the Special Committee) has determined in good faith, after consultation with its outside legal counsel, that failure to take such action would be inconsistent with its fiduciary duties under applicable Law.
Appears in 1 contract
No Solicitation or Negotiation. Each The Company and the Company Subsidiary shall, and the Company shall cause its and the Company Representatives to, (i) immediately cease any discussions or negotiations with any Persons with respect to an Acquisition Proposal (1) if the Company does not exercise or is not entitled to exercise the Go-Shop Extension Period at 12:00 a.m (Eastern Time) on April 1, 2013 and (2) if the Company exercises the Go-Shop Extension Period at 12:00 a.m. (Eastern Time) on April 11, 2013 (but only with respect to Excluded Parties for such additional ten (10) calendar day period beyond the Go-Shop Period) (as applicable, the ‘‘No-Shop Period Start Date’’); and (ii) from the No-Shop Period Start Date until the earlier of Seller the Effective Time and Parent covenants and agrees that between the date termination of this Agreement and in accordance with Section 7.1 (‘‘Termination’’), not (A) initiate, solicit, propose or knowingly encourage or facilitate any inquiries or the Closing neither it nor making of any of its Affiliates, officers, directors, representatives proposal or agents will, subject to the fiduciary duties of its Board of Directorsoffer that could constitute an Acquisition Proposal, (aB) initiate engage in, enter into, continue or otherwise participate in any discussions or negotiations regarding or that would reasonably be expected to lead to, or provide any non-public information or data concerning the submission Company or the Company Subsidiary to any Person or group of Persons relating to, any Acquisition Proposal, (bC) otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make an Acquisition Proposal, (D) approve, endorse or recommend, or propose to approve, endorse or recommend, or execute or enter into into, any letter of intent, agreement with respect in principle, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar agreement relating to any Acquisition Proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, or (cE) participate in negotiations withresolve to propose, agree or provide information concerning Sellerpublicly announce an intention to do any of the foregoing. Following the No-Shop Period Start Date, Parent the Company shall promptly request each Person (with respect to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person other than an Excluded Party) that has executed a confidentiality agreement in connection with any its consideration of a possible Acquisition Proposal. Seller and Parent will promptly communicate Proposal to Buyer any solicitation return or inquiry received by it and destroy in accordance with the terms of any proposal such confidentiality agreement all confidential information heretofore furnished to such Person by or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry on behalf of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the BusinessCompany.
Appears in 1 contract
Sources: Merger Agreement
No Solicitation or Negotiation. Each Except as expressly permitted by this Section 6.2 (including as provided in the last sentence of Seller this paragraph), the Company and Parent covenants its Subsidiaries and agrees their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ Representatives to, (i) at 12:00 a.m. on January 23, 2011 (the “No-Shop Period Start Date”) immediately cease any discussions or negotiations with any Persons that between may be ongoing with respect to an Acquisition Proposal and (ii) from the date No-Shop Period Start Date until the earlier of the Acceptance Time and the termination of this Agreement and in accordance with Article VIII, not (A) initiate, solicit, propose or knowingly encourage (including by providing non-public information) any inquiries or the Closing neither it nor making of any of its Affiliates, officers, directors, representatives proposal or agents will, subject to the fiduciary duties of its Board of Directorsoffer that constitutes an Acquisition Proposal, (aB) initiate engage in, enter into, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data concerning the submission Company or its Subsidiaries to any Person or group of Persons relating to, any Acquisition Proposal, (bC) otherwise knowingly cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make an Acquisition Proposal, (D) approve, endorse or recommend, or propose to approve, endorse or recommend, or execute or enter into into, any letter of intent, agreement with respect in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to any Acquisition Proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, or (cE) participate resolve to propose or agree to do any of the foregoing. Any breach by Representatives of the Company or its Subsidiaries of this Section 6.2(b) shall be deemed to be a breach by the Company. The parties hereto agree that, notwithstanding the commencement of the obligations of the Company under this Section 6.2(b) on the No-Shop Period Start Date, the Company may continue to engage in negotiations with, or provide information concerning Seller, Parent (the activities permitted in Section 6.2(a)(ii) with respect to an Excluded Party until the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry end of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder Tender Offer Extension (the “Exchange ActCut-off Date”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent including with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business any amended or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated revised proposal submitted by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the Businesssuch Excluded Party.
Appears in 1 contract
No Solicitation or Negotiation. Each (a) The Company acknowledges that neither it, nor any of Seller its Company Representatives, are engaged in any discussions or negotiations with any Person with respect to an Acquisition Proposal and confirms that it has complied with, and is in current compliance with, its Standstill Obligations (as defined in that certain Indication of Interest, dated June 27, 2013, between Parent covenants and agrees that between the Company). The Company shall not, and shall not authorize or permit its Company Representatives to, directly or indirectly, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with the terms of Article VI: (i) solicit, initiate, facilitate or encourage an Acquisition Proposal; or (ii) (A) furnish or disclose to any Person non-public information with respect to an Acquisition Proposal; (B) negotiate or engage in discussions with any Person with respect to an Acquisition Proposal; or (C) enter into or amend or grant any waiver or release under any Contract (whether or not binding) or agreement in principle with respect to an Acquisition Proposal.
(b) The Company Board shall not: (i) withdraw, amend, or modify, or propose to withdraw, modify, or qualify in a manner adverse to Parent or MergerSub, its Board Recommendation; (ii) approve, recommend, or fail to recommend against, or propose to approve or recommend, any Acquisition Proposal; (iii) make any statement inconsistent with its recommendation that the Shareholders approve and adopt this Agreement and the Closing neither it nor Merger; (iv) fail to include its Board Recommendation to the Shareholders in the Proxy Statement; or (v) enter into any Contract (whether or not binding) or agreement in principle with respect to any Acquisition Proposal (any of the foregoing listed in (i), (ii), (iii) or (iv), an “Adverse Recommendation” and (v), an “Adverse Acquisition Agreement”).
(c) Notwithstanding Sections 4.11(a) and 4.11(b), prior to the receipt of the Required Approval, the Company Board, directly or indirectly through any Representative, may, but subject to Sections 4.11(d) and 4.11(e): (i) participate in negotiations or discussions with any third-party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that did not result from violation of this Section 4.11 that the Company Board believes in good faith, after consultation with outside legal counsel and the Company’s financial advisor, constitutes a Superior Proposal; (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Affiliates, officers, directors, representatives or agents will, subject Subsidiaries pursuant to an executed confidentiality agreement containing terms no less favorable to the Company, in the aggregate, than those set forth in the Confidentiality Agreement, including the standstill obligations set forth in Section 8 of the Confidentiality Agreement, except that each agreement will permit the sharing of information by the Company to Parent as contemplated by this Agreement (a copy of such confidentiality agreement shall be promptly (in all events within twenty-four (24) hours and such standstill obligations will apply despite the entry into this Agreement) provided to Parent); (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation and enter into an Adverse Acquisition Agreement; (iv) take any action that any court of competent jurisdiction orders the Company or any of its Subsidiaries to take (which order remains unstayed); and/or (v) upon the occurrence of an Intervening Event, make an Adverse Recommendation, but in each case referred to in the foregoing clauses (i) through (v), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Shareholders an Adverse Recommendation with regard to an Acquisition Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of its applicable Law.
(d) The Company Board shall not take any of Directors, the actions referred to in clauses (ai) initiate through (v) of Section 4.11(c) unless the submission Company complies with the provisions of this Section 4.11(d). The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after the receipt by the Company (or any Company Representative) of any Acquisition Proposal, (b) enter into any agreement with respect inquiry that would reasonably be expected to any lead to an Acquisition Proposal, or (c) participate in negotiations with, or provide any request for non-public information concerning Seller, Parent (with respect relating to the Business Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third-party or the Acquired Assets)determination of an Intervening Event. In such notice, or their respective assets, liabilities or business to, any Person in connection with the Company shall: (i) identify the third-party making any Acquisition Proposal. Seller Proposal and Parent will promptly communicate to Buyer any solicitation or inquiry received by it (ii) provide a summary of the material terms and the terms of any proposal or inquiry that it may receive in respect conditions of any Acquisition Proposal, indication or request or the material details of any Intervening Event (including specifying the estimated dollar value or range of estimated dollar values attributed to such Intervening Event). The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least one (1) Business Day prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal or, in the case of an Intervening Event, that causes the Company Board to adopt an Adverse Recommendation. The Company shall promptly provide Parent with a list of any non-public information requested from itconcerning the Business and the Company’s present or future performance, financial condition or results of operations, provided to any third-party, and, to the extent such information has not been previously provided to Parent, copies of such information.
(e) Notwithstanding Section 4.11(b), at any time prior to the receipt of the Required Approval, the Company Board may make an Adverse Recommendation in response to a Superior Proposal or Intervening Event, if: (i) the Company promptly notifies Parent, in writing, at least four (4) Business Days (the “Fiduciary Out Notice Period”) before making an Adverse Recommendation, of its intention to take such action with respect to a Superior Proposal or Intervening Event, which notice (in the case of a Superior Proposal) shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation; (ii) in the case of a Superior Proposal, the Company attaches to such notice the most current version of the proposed agreement with respect to (which version shall be updated on a prompt basis), and the identity of the third-party making, such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, during the Fiduciary Out Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal or such Intervening Event ceases to exist, as the case may be, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Fiduciary Out Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Fiduciary Out Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Fiduciary Out Notice Period subsequent to the time the Company notifies Parent of any such negotiations material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and its financial advisor, that (A) in the case of a Superior Proposal, such Acquisition Proposal continues to constitute a Superior Proposal or discussions being sought (B) in the case of an Intervening Event, such Intervening Event continues to be initiated with it. constitute an Intervening Event, and in each case of (A) or (B), after taking into account any adjustments made by Parent during the Fiduciary Out Notice Period in the terms and conditions of this Agreement, including pursuant to clause (e)(iii) of this Section 4.11.
(f) Nothing contained in this Section 7.6 4.11 shall be construed as prohibiting deemed to prohibit the Company or the Company Board of Directors of Parent or any committee thereof from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) mergercomplying with its disclosure obligations under applicable Law with regard to an Acquisition Proposal, consolidation including talking and disclosing to its Shareholders a position contemplated by Rule 14d-9 or similar transaction involving Rule 14e-2 under the Business Exchange Act or the Acquired Assets, (ii) salecomplying with its disclosure obligations if, lease in the good faith judgment of the Company Board, after consultation with outside counsel, failure to disclose would reasonably be expected to be inconsistent with its obligations under applicable Law. For avoidance of doubt, nothing set forth in this Section 4.11 shall prohibit the Company or the Company Board from issuing a “stop, look and listen” statement or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise communication pending disclosure of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934its position, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, contemplated by Rule 14d-9 or the right to acquire beneficial ownership of, or any “group” (as such term is defined Rule 14e-2 under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the Business.
Appears in 1 contract
No Solicitation or Negotiation. Each of Seller (a) The Company, its subsidiaries and Parent covenants other affiliates and agrees that between their respective officers and other employees, directors, representatives (including the date of this Agreement Financial Advisor or any other investment banker and any attorneys and accountants) and agents shall immediately cease any discussions or negotiations with any other persons with respect to any Third Party Acquisition. Neither the Closing neither it Company nor any of its Affiliatessubsidiaries and other affiliates shall, nor shall the Company authorize or permit any of its or their respective officers, directors, employees, representatives or agents willto, subject directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with or provide any information to any person or group (other than Parent and Acquisition or any designees of Parent and Acquisition) concerning any Third Party Acquisition; provided, however, that if the Company Board determines in good faith, after consultation with outside legal counsel of national reputation, that it is necessary to do so in order to comply with its fiduciary duties to the fiduciary duties Company's stockholders under applicable Delaware law, the Company may, in response to a proposal or offer for a Third Party Acquisition that was not solicited and that the Company Board determines, after consultation with the Company Financial Advisor, is from a Third Party that is capable of consummating a Superior Proposal and only for so long as the Company Board so determines that its Board of Directors, (a) initiate the submission of any Acquisition actions are likely to lead to a Superior Proposal, (i) furnish information with respect to the Company to any such person pursuant to a customary confidentiality agreement so long as any information so provided which has not previously been provided by the Company to Parent will be promptly delivered to Parent and (ii) participate in the discussions and negotiations regarding such proposal or offer. The Company promptly (and in any event within one business day after becoming aware thereof) will (i) notify Parent in the event the Company or any of its subsidiaries and other affiliates or any of their respective officers, directors, employees and agents receives any proposal or inquiry concerning a Third Party Acquisition, including the material terms and conditions thereof, and any request for confidential information in connection with a potential Third Party Acquisition, (ii) provide a copy of any written agreements, proposals or other materials the Company receives from any such person or group (or its representatives), and (iii) advise Parent of the status, at any time upon Parent's request, and from time to time promptly following any material developments concerning the same.
(b) Except as set forth in this Section 5.2(b), the Company Board shall not withdraw or modify its recommendation of the transactions contemplated hereby or approve or recommend, or cause or permit the Company to enter into any agreement or obligation with respect to, any Third Party Acquisition. Notwithstanding the foregoing, if the Company Board by a majority vote determines in its good faith judgment, after consultation with and after receiving the advice of outside legal counsel of national reputation, that it is required to do so in order to comply with its fiduciary duties, the Company Board may withdraw its recommendation of the transactions contemplated hereby or approve or recommend a Superior Proposal, but in each case only (i) after providing written notice to Parent (a "Notice of Superior Proposal") advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person or group making such Superior Proposal and (ii) if Parent does not, within 48 hours after Parent's receipt of the Notice of Superior Proposal, make an offer that the Company Board by a majority vote determines in its good faith judgment (after consultation with the Financial Advisor or another financial advisor of nationally recognized reputation) to be at least as favorable to the Company's stockholders as such Superior Proposal; provided, however, that the Company shall not be entitled to enter into any agreement with respect to a Superior Proposal unless and until this Agreement is terminated pursuant to Section 7.1 and the Company has paid any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, amounts due to Parent (pursuant to Section 7.3. Any disclosure that the Company Board may be compelled to make with respect to the Business receipt of a proposal for a Third Party Acquisition or otherwise in order to comply with its fiduciary duties or Rule 14d-9 or 14e-2 will not constitute a violation of this Agreement; provided, however, that such disclosure states that no action will be taken by the Acquired Assets), or their respective assets, liabilities or business to, any Person Company Board in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms violation of this Section 7.6. “Acquisition Proposal” 5.2(b).
(c) For purposes of this Agreement, "Third Party Acquisition" means the occurrence of any proposed of the following events: (i) merger, consolidation or similar transaction involving the Business or acquisition of the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly Company by merger, consolidation, share exchange merger or otherwise of all or by any substantial part of the Business or the Acquired Assets, person (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (includes a "person" as such term is defined under in Section 13(d)(3) of the Exchange Act) shall have been formed which beneficially owns other than Parent, Acquisition or has any affiliate thereof (a "Third Party"); (ii) the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions acquisition by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision a Third Party of any confidentiality material portion (which shall include 20% or standstill agreement relating to more) of the assets of the Company and its subsidiaries, taken as a whole; or affecting (iii) the Business.acquisition by a
Appears in 1 contract
Sources: Merger Agreement (Mark Vii Inc)
No Solicitation or Negotiation. Each Subject to the terms of Seller and Parent covenants and agrees that between Section 5.3(c), from the date No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Closing neither it nor Effective Time, the Company Group will not, will cause its directors, officers and employees not to, and will not instruct, authorize or knowingly permit any of its Affiliatesother Representatives to, officersand will direct such Representatives not to, directorsdirectly or indirectly, representatives (i) solicit, initiate, propose, knowingly encourage or agents willknowingly facilitate, subject any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal;(ii) furnish to any Person (other than to Parent or any designees of Parent) any non-public information relating to the fiduciary duties Company Group or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of its Board the Company Group (other than Parent or any designees of DirectorsParent), (a) initiate in any such case with the intent to induce the making, submission of or announcement of, or to knowingly encourage or knowingly facilitate, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (other than informing such Persons of the provisions contained in this Section 5.3 and contacting the Person making the Acquisition Proposal to the extent necessary to clarify the terms of the Acquisition Proposal); (iv) approve, endorse or recommend any proposal that constitutes, or is reasonably expected to lead to, an Acquisition Proposal; or (bv) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). From the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will cease, and will cause to be terminated any and all discussions or negotiations that would be prohibited by this paragraph with respect any Person and its Representatives that would be prohibited by this Section 5.3(c). Promptly following the No-Shop Period Start Date, the Company will (A) request the return or destruction of all non-public information concerning the Company Group furnished to any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (with respect to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person that has executed a confidentiality agreement in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer Proposal at any solicitation or inquiry received by it and time within the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting six month period immediately preceding the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired AssetsNo-Shop Period Start Date, (iiB) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or cease providing any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent further information with respect to the Retained BusinessCompany Group or any Acquisition Proposal to any such Person or its representatives and (C) terminate all access granted to any such Person and its representatives to any physical or electronic data room. Notwithstanding anything herein to the contrary, so long as from the transactions do date hereof the Company will not have an adverse effect be required to enforce, and will be permitted to waive, (i) any anti-clubbing, anti-lock-up, restrictions on engaging Representatives or working with potential financing sources (including restrictions on sharing non-public information with respect to the Business Company Group or the Acquired Assets any Acquisition Proposal with financing sources) or Seller’s similar provision of any standstill or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller confidentiality agreement and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive (ii) any provision of any standstill or confidentiality agreement solely to the extent that such provision prohibits or standstill agreement relating purports to or affecting prohibit a confidential proposal being made to the BusinessCompany Board.
Appears in 1 contract
Sources: Merger Agreement (Chico's Fas, Inc.)
No Solicitation or Negotiation. Each of Seller and Parent covenants and agrees that between the date of this Agreement and the Closing neither it nor any of its Affiliates, officers, directors, representatives or agents will, subject to the fiduciary duties of its Board of Directors, (a) initiate The Seller shall, and shall direct or cause its representatives to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal. The Seller shall not, directly or indirectly, and shall instruct (and not revoke any such instructions) its representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Acquisition Proposal, (bii) enter into any agreement with respect to any Acquisition Proposal, Proposal or (ciii) participate in any discussions or negotiations withregarding, or provide furnish to any Person any information concerning Seller, Parent (with respect to, or take any other action to the Business facilitate any inquiries or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms making of any proposal that constitutes, or inquiry that it may receive in respect of reasonably be expected to lead to, any Acquisition Proposal, or afford access to properties, books or records of the Seller to any such information requested from it, or of any such negotiations or discussions being sought Person that has disclosed to be initiated with it. Nothing the Seller that it is contemplating making an Acquisition Proposal.
(b) Notwithstanding anything to the contrary in this Section 7.6 shall be construed as prohibiting 5.06, the Board of Directors of Parent from (x) making Seller may participate in any disclosure to Parent’s shareholdersdiscussions or negotiations with, or furnish information to, any Person that has made an unsolicited Acquisition Proposal, that did not result from a breach of Section 5.06(a), and where the Seller has (yi) responding determined, in its good faith judgment (after consultation with its outside legal counsel and its financial advisors), that such Acquisition Proposal constitutes, or may reasonably be expected to lead to, a Superior Proposal, (ii) provided written notice to the Purchaser of its intent to participate in discussions or negotiations with, or furnish information to, such Person, and (iii) obtained from such Person an executed confidentiality agreement on terms no more favorable to the other party than those contained in the Confidentiality Agreement. The Seller shall notify the Purchaser of any unsolicited proposal or inquiry by advising Acquisition Proposal it receives within one Business Day after receipt of such Acquisition Proposal and shall include the material terms and conditions of such Acquisition Proposal and the identity of the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means . The Seller shall notify the Purchaser of any proposed material modification to any Acquisition Proposal within one Business Day after such modification is proposed.
(ic) mergerIn the event that the Seller enters into a definitive agreement with respect to a Superior Proposal, consolidation or similar transaction involving such agreement shall provide that the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations purchaser thereunder (the “Exchange ActAlternative Purchaser”)) ofshall, or at the right option of the Purchaser, (i) assume the funding commitment with respect to acquire beneficial ownership of, or any “group” those Special Loans assigned to the Purchaser pursuant to Section 2.10 hereof that have not yet been funded and indemnify the Purchaser with respect to such funding commitment and (as such term is defined under ii) purchase each of the Exchange Act) shall Special Loans assigned to the Purchaser pursuant to Section 2.10 hereof that have been formed which beneficially owns or has funded for an amount equal to the right to acquire beneficial ownership of, par value of such Special Loans plus the Business or accrued interest thereon and indemnify the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent Purchaser with respect to the Retained Businessobligations under the Loan Documents with respect to those Special Loans purchased. In order to exercise the option referred to in the preceding sentence, so long as the transactions do Purchaser must deliver written notice to the Alternative Purchaser not have an adverse effect on later than the second Business or Day following the Acquired Assets or Seller’s or Parent’s ability termination of this Agreement pursuant to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the BusinessSection 8.01(f).
Appears in 1 contract
No Solicitation or Negotiation. Each of Seller During the Pre-Closing Period, except as expressly permitted by this Section 5.3, Parent shall not, and Parent covenants shall cause its and agrees its Subsidiaries’ directors, officers and employees not to, and shall cause its and their respective Representatives not to, directly or indirectly:
(i) solicit, initiate, induce, knowingly encourage or knowingly facilitate (including by way of granting a waiver under Section 203 of the DGCL) any inquiries or the making of any proposal or offer that between constitutes, or could reasonably be expected to lead to, a Parent Acquisition Proposal;
(ii) participate in any discussions or negotiations or cooperate in any way with any Person regarding any Parent Acquisition Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to a Parent Acquisition Proposal;
(iii) provide any non-public information or data concerning Parent or any of its Subsidiaries to any Person in connection with, or for the purpose of soliciting, initiating, inducing, encouraging or facilitating, any Parent Acquisition Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to a Parent Acquisition Proposal;
(iv) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement with respect to, or that could reasonably be expected to lead to, a Parent Acquisition Proposal (other than an Acceptable Company Confidentiality Agreement entered into in accordance with Section 5.3(b));
(v) adopt, approve, declare advisable or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Parent Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL);
(vi) take any action or exempt any Person (other than the Company and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or Parent’s organizational or other governing documents; or
(vii) resolve, publicly propose or agree to do any of the foregoing. Parent shall, and shall cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect to any Parent Acquisition Proposal, or inquiry, proposal or offer that could reasonably be expected to lead to a Parent Acquisition Proposal and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Parent Acquisition Proposal. Parent shall (i) as soon as reasonably practicable after the date of this Agreement (and in all events no later than three Business Days), deliver a written notice to each Person that entered into a confidentiality agreement in anticipation of potentially making a Parent Acquisition Proposal within the Closing neither it nor last 12 months, to the effect that Parent is ending all discussions and negotiations with such Person with respect to any such Parent Acquisition Proposal effective as of the date hereof and requesting the prompt return or destruction of all confidential information previously furnished to such Person by or on behalf of Parent relating to any Parent Acquisition Proposal (and Parent shall use its Affiliatescommercially reasonable efforts to have such information returned or destroyed) and immediately terminate all physical and electronic data room access previously granted to any such party or its Representatives and (ii) commencing on the date of this Agreement, officersprohibit any third party (other than the Company and its Representatives) from having access to any physical or electronic data room relating to any possible Parent Acquisition Proposal. Parent shall use its commercially reasonable efforts to enforce the terms of each confidentiality agreement, directorsand its rights under the provisions of any “standstill” agreement, representatives with any such Person (other than the Company). Parent shall not grant any waiver of, or agents willagree to any amendment or modification to, subject or release any such Person from, any such agreement, to permit such Person to submit a Parent Acquisition Proposal, unless in any such case the Parent Board shall have determined, in good faith, after consultation with outside legal counsel, that the failure to take such actions would be inconsistent with the fiduciary duties of its the Parent Board of Directors, (a) initiate the submission of any Acquisition Proposal, (b) enter into any agreement with respect to any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (with respect to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors holders of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the Businessapplicable Law.
Appears in 1 contract
Sources: Merger Agreement (SomaLogic, Inc.)
No Solicitation or Negotiation. Each Subject to the terms of Seller and Parent covenants and agrees that between Section 5.3(b), from the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Closing neither it nor Effective Time, the Company and its Subsidiaries shall not, and shall not authorize or knowingly permit any of their respective Representatives to, directly or indirectly: (i) solicit, initiate, propose or knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or offer with respect to, that constitutes or would reasonably be expected to lead to, an Acquisition Proposal; (ii) furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company or any of its AffiliatesSubsidiaries or afford to any Person access to the business, officersproperties, directorsassets, representatives books, records or agents willpersonnel, of the Company or any of its Subsidiaries, in any such case with the intent to knowingly induce the making, submission or announcement of, or to knowingly encourage or knowingly facilitate, any proposal or offer with respect to, that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (or inquiries, proposals or offers that would reasonably be expected to lead to an Acquisition Proposal), in each case, other than informing such Persons of the existence of the provisions contained in this Section 5.3 and contacting the Person making the Acquisition Proposal solely in order to clarify (but not to engage in negotiations or provide non-public information regarding) the terms or conditions of the Acquisition Proposal that are necessary to determine whether the Acquisition Proposal constitutes a Superior Proposal; (iv) approve, endorse or recommend an Acquisition Proposal; (v) approve, endorse or recommend any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of the DGCL; or (vi) approve, endorse, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction (including any “clean team” or similar arrangement), other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Subject to the following two sentences of this Section 5.3(a), and subject to the fiduciary duties terms of its Board of Directors, (a) initiate the submission of any Acquisition Proposal, (b) enter into any agreement with respect to any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (with respect to the Business or the Acquired AssetsSection 5.3(b), or their respective assets, liabilities or business to, promptly (and in any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (event within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the Business.two
Appears in 1 contract
No Solicitation or Negotiation. Each A. No Solicitation. Until such time, if any, as this Agreement is terminated pursuant to Article X, the Seller will not, nor will it authorize or permit any Acquired Company or any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Seller or any Acquired Company to, directly or indirectly, solicit, initiate, or encourage any inquiries or proposals from any Person (other than the Purchaser) relating to any transaction involving the sale of all or any part of the Shares, the Business, the Assets or the Transferred Seller Assets (other than in the ordinary course of business), or any Equity Securities of any Subsidiary or of EMA, or any merger, consolidation, business combination, or similar transaction involving any Acquired Company (any such transaction, a "Competing Transaction") or participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, any Competing Transaction (it being expressly acknowledged by the Purchaser that any transaction involving the sale, merger, consolidation of, share exchange, tender or exchange offer for, business combination with, or similar transaction involving, the Seller or any of its subsidiaries other than the Acquired Companies and Parent covenants which is not inconsistent with this Agreement and agrees the consummation of the transactions contemplated hereby in accordance with its terms shall not fall within the definition of "Competing Transaction", so long as the Seller's obligations under this Agreement shall survive as the obligations of the resulting or surviving Person); provided, however, that between prior to the date approval of this Agreement and the Closing neither it nor any of its Affiliatestransactions contemplated hereby at a Special Meeting, officersthe Seller may, directors, representatives or agents will, subject to the extent required by the fiduciary duties obligations of its Board of Directors, (a) initiate the submission of any Acquisition Proposal, (b) enter into any agreement with respect to any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (with respect to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry the Seller as determined in good faith by advising such Board of Directors with the Person making such proposal or inquiry advice of the terms of this Section 7.6. “Acquisition Proposal” means any proposed outside legal counsel (i) mergerin response to an unsolicited request therefor, consolidation or similar transaction involving the Business or furnish information with respect to the Acquired Assets, Companies to any Person who has indicated to the Seller that it is interested in pursuing a Competing Transaction and discuss such information with such Person and (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part following the delivery to the Purchaser of the Business notice required pursuant to Section 6.7(C), participate in discussions or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which negotiations with any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) ofthat makes, or expresses a bona fide intention to make, a proposal with respect to a Competing Transaction. Without limiting the right to acquire beneficial ownership foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any officer, director or employee of, or any “group” investment banker, attorney, broker, agent or other advisor or representative with implied or express authority, of the Seller or any Acquired Company, shall be deemed to be a breach of this Section 6.7 by the Seller. For purposes of this Agreement, "Qualified Competing Transaction" means a Competing Transaction having terms which the Board of Directors of the Seller believes (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership ofbased on, among other things, the Business or the Acquired Assets. This Section 7.6 shall not apply advice of a financial advisor of nationally recognized reputation) in its good faith reasonable judgment to transactions by Parent with respect be more favorable to the Retained Business, so long as Seller than the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions terms contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the Businesshereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Unique Casual Restaurants Inc)
No Solicitation or Negotiation. Each Subject to the final sentence of Seller this Section 5.3(a), and Parent covenants and agrees that between subject to the terms of Section 5.3(b), from the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Closing neither it nor Effective Time, the Company and its Subsidiaries shall not, and shall not instruct, authorize or knowingly permit any of their respective Representatives to, directly or indirectly, (i) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal; (ii) furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any information relating to the Company or any of its AffiliatesSubsidiaries or afford to any Person (other than Parent, officers, directors, representatives Merger Sub or agents will, subject any designees of Parent or Merger Sub) access to the fiduciary duties business, properties, assets, books, records or personnel, of the Company or any of its Board of DirectorsSubsidiaries, (a) initiate in any such case with the intent to induce the making, submission of any or announcement of, or to knowingly encourage or knowingly facilitate, an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (or inquiries, proposals or offers that could reasonably be expected to lead to an Acquisition Proposal); (biv) approve, endorse or recommend an Acquisition Proposal; or (v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement with respect or other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement under the circumstances described in Section 5.3(b) (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Subject to the following two sentences of this Section 5.3(a), and subject to the terms of Section 5.3(b), after the date of this Agreement, the Company shall request the prompt return or destruction of all non-public information concerning the Company Group theretofore furnished to any such Person with whom a confidentiality agreement was entered into in connection with its consideration of an Acquisition ProposalTransaction at any time within the six (6) month period immediately preceding the date hereof, and shall promptly cease and shall cause each of its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to immediately cease, (A) any solicitations, discussions, communications or negotiations with any Person (cother than the Parties and their respective Representatives) participate in negotiations withconnection with an Acquisition Proposal by such Person, or provide information concerning Sellerin each case that exists as of the date of this Agreement, Parent (B) all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the Company with respect to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amendedTransactions, and the rules and regulations thereunder (the “Exchange Act”)C) of, or the right to acquire beneficial ownership of, or providing any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent further information with respect to the Retained BusinessCompany or any Acquisition Proposal to any such Person or its Representatives. From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, so long as the transactions do Company will be required to enforce, and will not have an adverse effect on the Business be permitted to waive, terminate or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not tomodify, without the prior written consent of Buyer, release any Person from or waive any provision of any standstill or confidentiality agreement that prohibits or standstill agreement relating purports to prohibit a proposal being made to the Company Board (or affecting any committee thereof) (unless the BusinessCompany Board (or any committee thereof) has determined in good faith, after consultation with its financial advisors and outside legal counsel, that failure to take such action would reasonably likely to be inconsistent with its fiduciary duties under applicable Law).
Appears in 1 contract
No Solicitation or Negotiation. Each of Seller the Company and Parent covenants and agrees that between the date of this Agreement and the Closing neither it nor any of its Affiliates, officers, directors, representatives respective Subsidiaries nor any of its or agents its respective 598048.58-New York Server 6A - MSW Subsidiaries’ officers and directors will, subject and each of the Company and Parent will not authorize its and its respective Subsidiaries’ Representatives to, and will use its reasonable best efforts to instruct and cause its and its respective Subsidiaries’ Representatives not to, directly or indirectly:
(i) initiate, solicit, or knowingly facilitate or encourage any inquiries or the making of any proposal or offer that constitutes, or is reasonably expected to constitute, an Acquisition Proposal;
(ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person who has made, or proposes to make, an Acquisition Proposal;
(iii) afford access to the fiduciary duties properties, books or records of its the Company or Parent, as applicable, or any of their respective Subsidiaries to any Person that has made, or to the Knowledge of the Company or to the Knowledge of Parent, as applicable, is considering making, any Acquisition Proposal;
(iv) except as permitted under Section 7.2(b)(ii), enter into any letter of intent or agreement in principle or any agreement or understanding providing for any Acquisition Proposal; or
(v) except as permitted under Section 7.2(b)(ii), propose publicly or agree to any of the foregoing relating to an Acquisition Proposal. Notwithstanding the foregoing, prior to (but not after) the time (A) in the case of the Company, this Agreement is approved by the Company’s stockholders pursuant to the Company Requisite Vote or (B) in the case of Parent, the Share Issuance is approved by Parent’s stockholders pursuant to the Parent Requisite Vote, as applicable, the Company’s Board of Directors or Parent’s Board of Directors, as applicable, may (1) provide information (including to potential debt or equity financing sources and potential asset purchasers and their respective potential debt and equity financing sources) in response to a request by a Person or Persons who has or have made a bona fide written Acquisition Proposal that was not initiated, solicited, facilitated or encouraged in violation of this Section 7.2 (a) initiate if the submission of Company or Parent, as applicable, receives from the Person or Persons so requesting the information an executed confidentiality agreement no more favorable in any Acquisition Proposal, (b) enter into any agreement with material respect to any Acquisition Proposalsuch Person or Persons than the Parent Confidentiality Agreement is to Parent, provided that all such information is concurrently furnished to Parent and to the Asset Purchaser, or (c) participate in negotiations with, or provide information concerning Seller, Parent (with respect to the Business Company, as applicable, to the extent not previously furnished, in the same form provided to such Person or the Acquired Assets), Persons (and/or its or their respective assets, liabilities potential debt or business to, equity financing sources and potential asset purchasers and their respective potential debt and equity financing sources); and/or (2) engage in discussions or negotiations with any Person or Persons who has or have made a bona fide written Acquisition Proposal that was not initiated, solicited, facilitated or encouraged in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms violation of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting 7.2(a), if, in each case, the Board of Directors of Parent from (x) making any disclosure to the Company or Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amendedapplicable, determines in good faith (after consultation with outside legal counsel and the rules and regulations thereunder (the “Exchange Act”)financial advisors) of, or the right that failure to acquire beneficial ownership of, or any “group” (as such term is defined take this action would be inconsistent with its fiduciary duties under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the Business.applicable
Appears in 1 contract
No Solicitation or Negotiation. Each Subject to the terms of Seller and Parent covenants and agrees that between this Section 5.3, from the date No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Closing neither it nor Effective Time, the Company will cease and cause to be terminated any discussions or negotiations with any Person and its Representatives that would be prohibited by this Section 5.3(b), request the prompt return or destruction of all non-public information concerning the Company or its Affiliates, officers, directors, representatives or agents will, subject to the fiduciary duties of its Board of Directors, (a) initiate the submission of any Acquisition Proposal, (b) enter into any agreement with respect Subsidiaries theretofore furnished to any Acquisition Proposal, or such Person with whom a confidentiality agreement was entered into at any time within the six month period immediately preceding the No-Shop Period Start Date and will (cA) participate in negotiations with, or provide cease providing any further information concerning Seller, Parent (with respect to the Business Company or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition ProposalProposal to any such Person or its Representatives; and (B) terminate all access granted to any such Person and its Representatives to any physical or electronic data room. Seller and Parent will promptly communicate Subject to Buyer any solicitation or inquiry received by it and the terms of Section 5.3(c), from the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company Group will not, and will not instruct, authorize or knowingly permit any of its Representatives to, directly or indirectly, (i) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that it may receive constitutes, or is reasonably expected to lead to, an Acquisition Proposal; (ii) furnish to any Person (other than to Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company Group or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company Group (other than Parent, Merger Sub or any designees of Parent or Merger Sub), in respect any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal, ; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (other than informing such Persons of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing the provisions contained in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or 5.3); (iv) transaction in which approve, endorse or recommend any Person proposes proposal that constitutes, or is reasonably expected to acquire beneficial ownership lead to, an Acquisition Proposal; or (within v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Table of Contents Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). From the meaning date hereof until the earlier to occur of Rule 13d-3 under the Securities Exchange Act termination of 1934this Agreement pursuant to Article VIII and the Effective Time, as amendedthe Company will not be required to enforce, and the rules and regulations thereunder (the “Exchange Act”)) ofwill be permitted to waive, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any standstill or confidentiality agreement solely to the extent that such provision prohibits or standstill agreement relating purports to prohibit a confidential proposal being made to the Company Board (or affecting the Businessany committee thereof).
Appears in 1 contract
Sources: Merger Agreement (Apptio Inc)
No Solicitation or Negotiation. Each Subject to the terms of Seller Section 6.4(b), from the end of the Transaction Solicitation Period until the earlier to occur of the (1) termination of this Agreement pursuant to Article IX and (2) Acceptance Time, the Company will cease and cause to be terminated any discussions or negotiations with, and terminate any data room access (or other access to diligence) of, any Person and its Affiliates, directors, officers, employees, consultants, agents, representatives and advisors (collectively, “Representatives”) relating to an Acquisition Transaction. Unless the Company has already so requested prior to the expiration of the Transaction Solicitation Period, promptly following the expiration of the Transaction Solicitation Period, the Company will request that each Person (other than Parent covenants and agrees its Representatives and any Excluded Parties) that between has, prior to the expiration of the Transaction Solicitation Period, executed a confidentiality agreement in connection with its consideration of an Acquisition Transaction, promptly return or destroy, in accordance with the terms of such confidentiality agreement, all non-public information furnished to such Person by or on behalf of the Company or its Subsidiaries prior to the expiration of the Transaction Solicitation Period. Subject to the terms of Section 6.4(b) and Section 6.4(d), from the end of the Transaction Solicitation Period until the earlier to occur of the (1) termination of this Agreement pursuant to Article IX and (2) Acceptance Time, the Company and its Subsidiaries, and their respective directors and executive officers, will not, and the Company will not authorize, direct, permit or instruct any of its or its Subsidiaries’ employees, consultants or other Representatives to, directly or indirectly, (i) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal that constitutes, or is reasonably expected to lead to, an Acquisition Proposal; (ii) furnish to any Person (other than Parent, Merger Sub or any of their respective designees) any non-public information relating to the Company or any of its Subsidiaries or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries (other than Parent, Merger Sub or any of their respective designees), in any such case in connection with any Acquisition Proposal or with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, an Acquisition Proposal or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal; (iii) participate, or engage in discussions or negotiations, with any Person with respect to an Acquisition Proposal or with respect to any inquiries from third Persons relating to the making of an Acquisition Proposal (other than only informing such Persons of the provisions contained in this Section 6.4); (iv) approve, endorse or recommend any proposal that constitutes, or is reasonably expected to lead to, an Acquisition Proposal; (v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”); or (vi) authorize, resolve or commit to do any of the foregoing. From the date of this Agreement and until the Closing neither it nor any of its Affiliates, officers, directors, representatives or agents will, subject earlier to the fiduciary duties of its Board of Directors, (a) initiate the submission of any Acquisition Proposal, (b) enter into any agreement with respect to any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (with respect to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry occur of the terms (1) termination of this Section 7.6. “Acquisition Proposal” means any proposed Agreement pursuant to Article IX and (i2) mergerAcceptance Time, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes Company will not be required to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amendedenforce, and the rules and regulations thereunder (the “Exchange Act”)) ofwill be permitted to waive, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any standstill or confidentiality agreement to the extent that such provision prohibits or standstill agreement relating purports to prohibit a confidential proposal being made to the Company Board (or affecting the Businessany committee thereof).
Appears in 1 contract
Sources: Merger Agreement (Rocket Fuel Inc.)
No Solicitation or Negotiation. Each of Seller (a) The Company acknowledges that neither it, nor its Representatives, is engaged in any discussions or negotiations with any Person with respect to an Acquisition Proposal and confirms that the Company has complied with, and is in current compliance with, the exclusivity obligations under that certain letter agreement, dated May 20, 2016, between Parent covenants and agrees that between the Company. The Company will not, and will not authorize or permit its Representatives to, directly or indirectly, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with the terms of Section 7: (i) solicit, initiate, facilitate or knowingly encourage an Acquisition Proposal; or (ii) (A) furnish or disclose to any Person non-public information with respect to an Acquisition Proposal; (B) negotiate or engage in discussions with any Person with respect to an Acquisition Proposal; or (C) enter into or amend or grant any waiver or release under any confidentiality or non-disclosure Contract with respect to an Acquisition Proposal.
(b) The Company’s board of directors will not: (i) withdraw, amend, or modify, or propose to withdraw, modify, or qualify in a manner adverse to Parent or Merger Sub, the Board Recommendation; (ii) approve, recommend, or fail to recommend against, or propose to approve or recommend, any Acquisition Proposal; (iii) make any statement inconsistent with its recommendation that the Company Stockholders approve and adopt this Agreement and the Closing neither it nor Merger; or (iv) enter into any of contract (whether or not binding) or agreement in principle with respect to any Acquisition Proposal.
(c) The Company will promptly (and in any event within one Business Day after receipt thereof by such party or its Affiliates, officers, directors, representatives or agents will, subject to the fiduciary duties of its Board of Directors, (aRepresentatives) initiate the submission advise Parent in writing of any Acquisition Proposal, (b) enter into any agreement request for information with respect to any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (any inquiry with respect to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person that would reasonably be expected to result in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any an Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, but excluding the identity of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the Businesssame.
Appears in 1 contract
Sources: Merger Agreement (BIO-TECHNE Corp)
No Solicitation or Negotiation. Each Except as expressly permitted by this Section 6.2 and except as may relate to any Person, group of Seller Persons or group that includes any Person or group of Persons from whom the Company has received during the Go-Shop Period a bona fide written Acquisition Proposal that the Board of Directors of the Company or any committee thereof determines in good faith (after consultation with its outside legal counsel and Parent covenants independent financial advisor) prior to the No-Shop Period Start Date is reasonably likely to result in a Superior Proposal (any such Person or group of Persons, an “Excluded Party”), the Company and agrees that between its Subsidiaries and their respective officers and directors shall, and the Company shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives to, (i) at 12:00 a.m. on the 31st calendar day after the date of this Agreement (the “No-Shop Period Start Date”) immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal and request promptly that such Persons return or destroy all confidential information concerning the Company and its Subsidiaries provided by or on behalf of the Company or its Subsidiaries and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and the Closing neither it nor termination of this Agreement in accordance with Article VIII, not (A) initiate, solicit or knowingly encourage any inquiries or the making of its Affiliates, officers, directors, representatives any proposal or agents will, subject to the fiduciary duties of its Board of Directorsoffer that constitutes an Acquisition Proposal, (aB) initiate engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information concerning the submission of Company or its Subsidiaries to, or otherwise cooperate with, any Person relating to, any Acquisition Proposal, (bC) enter into any agreement or agreement in principle with respect to any Acquisition ProposalProposal (other than a confidentiality agreement referred to in Section 6.2(c)), or (cD) participate in negotiations with, otherwise knowingly facilitate any effort or provide information concerning Seller, Parent (with respect attempt to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any make an Acquisition Proposal. Seller Notwithstanding the foregoing, a Person or group shall cease to be an Excluded Party when the ultimate equityholder(s) of such Person or group, as of the No-Shop Period Start Date, cease to provide (directly or indirectly) at least 50% of the equity financing (measured by voting power and Parent will promptly communicate to Buyer value) of such Person or group at any solicitation or inquiry received by it time following the No-Shop Period Start Date and the terms of any proposal Company receives actual notice or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the Businessobtains actual knowledge thereof.
Appears in 1 contract
Sources: Merger Agreement (Pharmaceutical Product Development Inc)
No Solicitation or Negotiation. Each Except as expressly permitted by Section 6.3(a) and Section 6.3(c), until the earlier to occur of Seller and Parent covenants and agrees that between the date termination of this Agreement pursuant to ARTICLE 10 and the Closing Effective Time, neither it the Company nor any of its AffiliatesSubsidiaries shall, officersand the Company and its Subsidiaries shall cause their respective Representatives not to, directors, representatives directly or agents will, subject to the fiduciary duties of its Board of Directorsindirectly, (ai) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (bii) continue, encourage, enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Third Party in furtherance of any Acquisition Proposal, (iii) withdraw or amend, qualify or modify, in each case, in a manner adverse to Parent, the Company Board Recommendation (or recommend, adopt, approve, endorse or otherwise declare advisable an Acquisition Proposal or make any public statement inconsistent with the Company Board Recommendation), it being understood that it shall be considered a modification of the Company Board Recommendation adverse to Parent if (A) any Acquisition Proposal structured as a tender or exchange offer is commenced by a Person other than a member of the Parent Affiliated Group and the Board of Directors of the Company fails to publicly recommend against acceptance of such tender or exchange offer by the Company stockholders in any solicitation or recommendation statement on Schedule 14D-9 filed by the Company with the SEC in connection with such tender offer or exchange offer, (B) any Acquisition Proposal is publicly announced by a Person other than a member of the Parent Affiliated Group (other than by the commencement of a tender or exchange offer) and the Board of Directors of the Company fails to issue a public press release within ten (10) Business Days of such public announcement providing that the Board of Directors of the Company reaffirms the Company Board Recommendation, or (C) the Company fails to include the Company Board Recommendation in the Proxy Statement (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (v) enter into any agreement with respect in principle, letter of intent or term sheet, merger agreement, acquisition agreement, option agreement or other similar Contract relating to an Acquisition Proposal (any such agreement, other than an Acceptable Confidentiality Agreement, an “Alternative Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (with respect to the Business or the Acquired AssetsAgreement”), (vi) approve, except at the written request or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of BuyerParent, release any Person from transaction under, or waive any provision third party becoming an “interested stockholder” under, Section 203 of the DGCL, or (vii) approve, authorize, agree, or publicly announce any confidentiality or standstill agreement relating intention to or affecting do any of the Businessforegoing.
Appears in 1 contract
Sources: Merger Agreement (TrueCar, Inc.)
No Solicitation or Negotiation. Each of Seller and Parent covenants and (a) ISI agrees that between the date of this Agreement and the Closing neither it earlier of (i) the effective Time and (ii) the termination of this Agreement, none of ISI, ISC, the Subsidiaries, the Ventures nor any of its their respective Affiliates, officers, directors, representatives or agents will, subject to the fiduciary duties of its Board of Directors, will (a) initiate the submission of solicit, initiate, encourage or accept any other proposals or offers from any Person relating to any Acquisition Proposal or (b) participate in any discussions, conversations, negotiations and other communications regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to seek to consummate any Acquisition Proposal. ISI immediately shall cease and cause to be terminated all existing discussions, (b) enter into conversations, negotiations and other communications with any agreement Persons conducted heretofore with respect to any Acquisition Proposal, of the foregoing. ISI shall notify Ispat promptly if any inquiry or (c) participate in negotiations with, or provide information concerning Seller, Parent (other contact with any Person with respect to an Acquisition Proposal is made and shall indicate the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms identity of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal Acquisition Proposal, inquiry or inquiry of contact and the terms and conditions of such Acquisition Proposal, inquiry or other contact. ISI agrees during the period provided for in the first sentence of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended5.06 not to, and the rules to cause ISC, each Subsidiary and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees each Venture not to, without the prior written consent of BuyerIspat, release any Person from from, or waive any provision of of, any confidentiality or standstill agreement relating to which ISI, ISC, any Subsidiary or affecting any Venture is a party which would be applicable to an Acquisition Proposal.
(b) Except as expressly permitted by this Section 5.06, neither the BusinessBoard of Directors of ISI nor any committee thereof shall (i) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (ii) cause ISI or ISC to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement with respect to any Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Inland Steel Co)
No Solicitation or Negotiation. Each of Seller and Parent covenants and agrees that between the date of this Agreement and the Closing neither it nor any of its Affiliates, officers, directors, representatives or agents will, subject to the fiduciary duties of its Board of Directors, (a) initiate The Seller shall, and shall direct or cause its representatives to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal. The Seller shall not, directly or indirectly, and shall instruct (and not revoke any such instructions) its representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Acquisition Proposal, (bii) enter into any agreement with respect to any Acquisition Proposal, Proposal or (ciii) participate in any discussions or negotiations withregarding, or provide furnish to any Person any information concerning Seller, Parent (with respect to, or take any other action to the Business facilitate any inquiries or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms making of any proposal that constitutes, or inquiry that it may receive in respect of reasonably be expected to lead to, any Acquisition Proposal, or afford access to properties, books or records of the Seller to any such information requested from it, or of any such negotiations or discussions being sought Person that has disclosed to be initiated with it. Nothing the Seller that it is contemplating making an Acquisition Proposal.
(b) Notwithstanding anything to the contrary in this Section 7.6 shall be construed as prohibiting 5.06, the Board of Directors of Parent from (x) making Seller may participate in any disclosure to Parent’s shareholdersdiscussions or negotiations with, or furnish information to, any Person that has made an unsolicited Acquisition Proposal, that did not result from a breach of Section 5.06(a), and where the Seller has (yi) responding determined, in its good faith judgment (after consultation with its outside legal counsel and its financial advisors), that such Acquisition Proposal constitutes, or may reasonably be expected to lead to, a Superior Proposal, (ii) provided written notice to the Purchaser of its intent to participate in discussions or negotiations with, or furnish information to, such Person, and (iii) obtained from such Person an executed confidentiality agreement on terms no more favorable to the other party than those contained in the Confidentiality Agreement. The Seller shall notify the Purchaser of any unsolicited proposal or inquiry by advising Acquisition Proposal it receives within one Business Day after receipt of such Acquisition Proposal and shall include the material terms and conditions of such Acquisition Proposal and the identity of the Person making such proposal or inquiry Acquisition Proposal. The Seller shall notify the Purchaser of any material modification to any Acquisition Proposal within one Business Day after such modification is proposed.
(c) In the event that the Seller enters into a definitive agreement with respect to a Superior Proposal, such agreement shall provide that the purchaser thereunder (the "Alternative Purchaser") shall, at the option of the terms of this Section 7.6. “Acquisition Proposal” means any proposed Purchaser, (i) merger, consolidation or similar transaction involving assume the Business or funding commitment with respect to those Special Loans assigned to the Acquired Assets, Purchaser pursuant to Section 2.10 hereof that have not yet been funded and indemnify the Purchaser with respect to such funding commitment and (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part purchase each of the Business or Special Loans assigned to the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes Purchaser pursuant to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall Section 2.10 hereof that have been formed which beneficially owns or has funded for an amount equal to the right to acquire beneficial ownership of, par value of such Special Loans plus the Business or accrued interest thereon and indemnify the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent Purchaser with respect to the Retained Businessobligations under the Loan Documents with respect to those Special Loans purchased. In order to exercise the option referred to in the preceding sentence, so long as the transactions do Purchaser must deliver written notice to the Alternative Purchaser not have an adverse effect on later than the second Business or Day following the Acquired Assets or Seller’s or Parent’s ability termination of this Agreement pursuant to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the BusinessSection 8.01(f).
Appears in 1 contract
No Solicitation or Negotiation. Each of Seller During the Pre-Closing Period, except as expressly permitted by this Section 5.4, Parent shall not, and Parent covenants shall cause its Subsidiaries and agrees direct their respective Representatives to not, directly or indirectly:
(i) solicit, initiate, induce or knowingly encourage or facilitate, any inquiries or the making of any proposal or offer that between constitutes, or could reasonably be expected to lead to, a Parent Acquisition Proposal;
(ii) participate in any discussions or negotiations or knowingly cooperate in any way with any Person regarding any proposal or offer, the date consummation of which would constitute a Parent Acquisition Proposal; provided that Parent and ▇▇▇▇▇▇’s Representatives, in response to an unsolicited inquiry or proposal from a third party, may inform such third party of the provisions of this Agreement and the Closing neither it nor Section 5.4;
(iii) knowingly provide any non-public information or data concerning Parent or any of its Affiliates, officers, directors, representatives or agents will, subject Subsidiaries to the fiduciary duties of its Board of Directors, (a) initiate the submission of any Acquisition Proposal, (b) enter into any agreement with respect to any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (with respect to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any proposal, the consummation of which would constitute a Parent Acquisition Proposal or for the purpose of soliciting, initiating, inducing or knowingly encouraging or facilitating a Parent Acquisition Proposal. Seller and ;
(iv) enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle, option agreement, joint venture agreement, partnership agreement, lease agreement or other similar agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.4(b)) with respect to a Parent will promptly communicate to Buyer any solicitation Acquisition Proposal or inquiry received by it and the terms of any proposal or inquiry offer that it may receive could reasonably be expected to lead to a Parent Acquisition Proposal;
(v) adopt, approve or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Parent Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL);
(vi) take any action or exempt any Person (other than the Company and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable takeover laws or Parent’s organizational or other governing documents; or
(vii) resolve, publicly propose or agree to do any of the foregoing. Parent shall, and shall cause its Subsidiaries and direct their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions and negotiations with any Person conducted heretofore with respect of to any Parent Acquisition Proposal, or proposal that could reasonably be expected to lead to a Parent Acquisition Proposal, and shall promptly terminate access by any such Person to any physical or electronic data rooms relating to any such Parent Acquisition Proposal. As soon as reasonably practicable after the date of this Agreement, Parent shall deliver a written notice to each Person that entered into a confidentiality agreement in anticipation of potentially making a Parent Acquisition Proposal since January 1, 2023, to the effect that Parent is ending all discussions and negotiations with such Person with respect to any Parent Acquisition Proposal, effective on the date hereof and requesting the prompt return or destruction of all confidential information previously furnished to such Person. Parent shall take all actions necessary to enforce its rights under the provisions of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of “standstill” agreement between Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which and any Person proposes to acquire beneficial ownership (within other than the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amendedCompany), and the rules and regulations thereunder (the “Exchange Act”)) shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such Person to submit a Parent Acquisition Proposal (except that if the right Parent Board determines in good faith, after consultation with outside legal counsel, that the failure to acquire beneficial ownership ofgrant any waiver or release would be inconsistent with the Parent directors’ fiduciary duties under applicable law, or Parent may waive any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect standstill provision solely to the Retained Business, so long as extent necessary in order to permit the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability Parent Board to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the Businesscomply with its fiduciary duties under applicable Law).
Appears in 1 contract
No Solicitation or Negotiation. Each (a) The Company acknowledges that neither it, nor any of Seller its Representatives, is engaged in any discussions or negotiations with any Person with respect to an Acquisition Proposal and confirms that it has complied with, and is in current compliance with, the exclusivity obligations under that certain letter agreement, dated May 29, 2014, between Parent covenants and agrees that between the Company. Subject to the Board of Directors’ fiduciary duties to the Company Stockholders prior to receipt of the Required Stockholder Approval, the Company will not, and will not authorize or permit its Representatives to, directly or indirectly, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with the terms of Section 7: (i) solicit, initiate, facilitate or encourage an Acquisition Proposal; or (ii) (A) furnish or disclose to any Person non-public information with respect to an Acquisition Proposal; (B) negotiate or engage in discussions with any Person with respect to an Acquisition Proposal; or (C) enter into or amend or grant any waiver or release under any Contract (whether or not binding) or agreement in principle with respect to an Acquisition Proposal.
(b) The Company’s board of directors will not, subject to its fiduciary duties prior to receipt of the Required Stockholder Approval: (i) withdraw, amend, or modify, or propose to withdraw, modify, or qualify in a manner adverse to Parent or Merger Sub, the Board Recommendation; (ii) approve, recommend, or fail to recommend against, or propose to approve or recommend, any Acquisition Proposal; (iii) make any statement inconsistent with its recommendation that the Company Securityholders approve and adopt this Agreement and the Closing neither it nor Merger; or (iv) enter into any of contract (whether or not binding) or agreement in principle with respect to any Acquisition Proposal.
(c) The Company will promptly (and in any event within one Business Day after receipt thereof by such party or its Affiliates, officers, directors, representatives or agents will, subject to the fiduciary duties of its Board of Directors, (aRepresentatives) initiate the submission advise Parent orally and in writing of any Acquisition Proposal, (b) enter into any agreement request for information with respect to any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (any inquiry with respect to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person that could reasonably be expected to result in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any an Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal the same; provided, that the Company will not be obligated to disclose to Parent the identity of the Person making the request or inquiry of to the terms extent that providing such information to Parent would violate any agreement between the Company and a third party entered into prior to the date of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the BusinessAgreement.
Appears in 1 contract
Sources: Merger Agreement (Techne Corp /Mn/)
No Solicitation or Negotiation. Each of Seller and Parent covenants and agrees that between (a) Between the date hereof and the earlier of the termination of this Agreement and the Closing neither it Effective Time, the Company shall not (nor shall the Company permit any of its Affiliates, officers, directors, representatives employees, consultants, agents, representatives, affiliates or agents willshareholders (including The ▇▇▇▇▇▇ Companies, subject to the fiduciary duties Inc. and any of its Board affiliates or subsidiaries) or cause any person on behalf of Directorsthe Company to) directly or indirectly, take any of the following actions with any person other than Parent and Acquisition:
(ai) initiate the submission of solicit, initiate, entertain or encourage any Acquisition Proposalproposals or offers from, or conduct discussions with or engage in negotiations with any person relating to any possible Third Party Acquisition;
(bii) provide information with respect to it to any person, other than Parent and Acquisition, relating to, or otherwise cooperate with, facilitate or encourage any effort or attempt by any such person with regard to, any possible Third Party Acquisition; or
(iii) enter into any agreement with any person providing for a Third Party Acquisition.
(b) The Company shall promptly notify Parent in the event the Company or any of its affiliates and their respective directors, officers, employees, consultants, agents, representatives, affiliates or shareholders (including The ▇▇▇▇▇▇ Companies, Inc. and any of its affiliates or subsidiaries) receives any proposal or inquiry concerning a Third Party Acquisition, including the terms and conditions thereof and the identity of the person or group submitting such proposal, and shall advise Parent from time to time of the status and any material developments concerning the same. Except as set forth in this Section 4.8(b), the Company Board shall not withdraw its recommendation of the transactions contemplated hereby or approve or recommend, or cause the Company to enter into any agreement with respect to, any Third Party Acquisition. Notwithstanding the foregoing, if the Company Board by a majority vote determines in its good faith judgment, that it is required to any Acquisition do so in order to comply with its fiduciary duties, the Company Board may withdraw its recommendation of this Agreement and the transactions contemplated hereby, but only (i) after providing written notice to Parent (a "Notice of Superior Proposal") advising Parent that the Company Board has received a Superior Proposal, or specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal, and (cii) participate if Parent does not, within five (5) business days after Parent's receipt of the Notice of Superior Proposal, make an offer that the Company Board by a majority vote determines in negotiations withits good faith judgment (based on the written advice of a financial adviser) to be at least as favorable to the Company's shareholders as such Superior Proposal; PROVIDED, or provide information concerning SellerHOWEVER, Parent (that no withdrawal of the Company Board's recommendation of this Agreement and the transactions contemplated hereby shall relieve the Company of its obligation to submit this Agreement and such transactions to its shareholders for approval, as provided in Section 4.2. Any disclosure that the Company Board may be compelled to make with respect to the Business receipt of a proposal for a Third Party Acquisition or otherwise in order to comply with its fiduciary duties will not constitute a violation of this Agreement; PROVIDED, HOWEVER, that such disclosure states that no action will be taken by the Acquired Assets), or their respective assets, liabilities or business to, any Person Company Board in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms violation of this Section 7.6. “Acquisition Proposal” 4.8(b).
(c) For purposes of this Agreement, "Third Party Acquisition" means the occurrence of any proposed of the following events: (i) merger, consolidation or similar transaction involving the Business or acquisition of the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly Company by merger, consolidation, share exchange merger or otherwise of all or by any substantial part of the Business or the Acquired Assets, person (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (includes a "person" as such term is defined under in Section 13(d)(3) of the Exchange Act) shall have been formed which beneficially owns other than Parent, Acquisition or has any affiliate thereof (a "Third Party"); (ii) the right acquisition by a Third Party of any material portion of the assets of the Company and its subsidiaries, taken as a whole, other than the sale of their products in the ordinary course of business consistent with past practices; (iii) the acquisition by a Third Party of fifteen percent (15%) or more of the outstanding Shares; (iv) the adoption by the Company of a plan of total or partial liquidation or the declaration or payment of an extraordinary dividend; (v) the repurchase by the Company or any of its subsidiaries of more than ten percent (10%) of the outstanding Shares; or (vi) the acquisition by the Company or any of its subsidiaries by merger, purchase of stock or assets, joint venture or otherwise of a direct or indirect ownership interest or investment in any business whose annual revenues, net income or assets is equal or greater than ten percent (10%) of the annual revenues, net income or assets of the Company. For purposes of this Agreement, a "Superior Proposal" means any BONA FIDE proposal to acquire beneficial ownership of, directly or indirectly for consideration consisting of cash and/or securities more than fifty percent (50%) of the Business Shares then outstanding or all or substantially all of the Acquired Assets. This Section 7.6 shall not apply assets of the Company and otherwise on terms that the Company Board by a majority vote determines in its good faith judgment (based on the written advice of a financial advisor) to transactions by Parent with respect be more favorable to the Retained Business, so long as Company's shareholders than the transactions do not have an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the BusinessMerger.
Appears in 1 contract
Sources: Merger Agreement (Quidel Corp /De/)
No Solicitation or Negotiation. Each (a) The Company acknowledges that neither it, nor any of Seller its Company Representatives, are engaged in any discussions or negotiations with any Person with respect to an Acquisition Proposal and Parent covenants confirms that it has complied with, and agrees that between is in current compliance with, its standstill obligations as set forth in the Exclusivity Letter. Except as otherwise permitted by this Section 4.11, the Company shall not, and shall not authorize or permit its Company Representatives to, directly or indirectly, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with the terms of Article VI: (i) solicit, initiate, facilitate or encourage the making of an Acquisition Proposal; or (ii) (A) furnish or disclose to any Person non-public information with respect to an Acquisition Proposal; (B) negotiate or engage in discussions with any Person with respect to an Acquisition Proposal; or (C) enter into or amend or grant any waiver or release under any Contract (whether or not binding) or agreement in principle with respect to an Acquisition Proposal.
(b) Except as otherwise permitted by this Section 4.11 or unless the cancellation of, or removal of this Agreement from consideration at, the Company Shareholder Meeting is mandated by NRS 92A.120, the Company Board shall not: (i) withdraw, amend, modify or qualify, or publicly propose to withdraw, amend, modify or qualify in a manner adverse to Parent or MergerSub, its Board Recommendation; (ii) approve, recommend, or fail to recommend against, or publicly propose to approve or recommend, any Acquisition Proposal; (iii) make any public statement inconsistent with its recommendation that the Shareholders approve this Agreement and the Closing neither it nor Merger; (iv) fail to include its Board Recommendation to the Shareholders in the Proxy Statement; or (v) enter into any Contract (whether or not binding) or agreement in principle with respect to any Acquisition Proposal (any of the foregoing listed in (i), (ii), (iii) or (iv), an “Adverse Recommendation” and (v), an “Adverse Acquisition Agreement”).
(c) Notwithstanding Sections 4.11(a) and 4.11(b), prior to the receipt of the Required Approval, including during a Fiduciary Out Notice Period, the Company Board, directly or indirectly through any Representative, may, but subject to Sections 4.11(d) and 4.11(e): (i) participate in negotiations or discussions with any third-party that has made (and not withdrawn) a bona fide and unsolicited Acquisition Proposal that did not result from violation of this Section 4.11 and that would reasonably be expected to lead to a Superior Proposal (a “Qualified Acquisition Proposal”); (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Affiliates, officers, directors, representatives or agents will, subject Subsidiaries pursuant to an executed confidentiality agreement containing terms no less favorable to the Company, in the aggregate, as reasonably determined by the Company, than those set forth in the Confidentiality Agreement, except that each such confidentiality agreement will permit the sharing of information by the Company to Parent as contemplated by this Agreement (a copy of such confidentiality agreement shall be promptly provided to Parent (in all events within thirty-six (36) hours)); (iii) following receipt of and on account of a Qualified Acquisition Proposal that the Company Board determines in good faith after consultation with its outside legal counsel and financial advisor constitutes a Superior Proposal, make an Adverse Recommendation and/or enter into an Adverse Acquisition Agreement; and/or (iv) take any action that any court of competent jurisdiction orders the Company or any of its Subsidiaries to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, which shall be deemed to include its obligations under NRS 92A.120.
(d) The Company Board shall not take any of its Board the actions referred to in clauses (i) through (iv) of Directors, Section 4.11(c) unless the Company complies with the provisions of this Section 4.11(d). The Company shall notify Parent promptly (abut in no event later than thirty-six (36) initiate hours) after the submission receipt by the Company (or any Company Representative) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third-party, in each case, in connection with an Acquisition Proposal. In such notice, the Company shall: (bi) identify the third-party making the Acquisition Proposal and (ii) provide a summary of the material terms and conditions of the Acquisition Proposal, or indication or request. The Company shall notify Parent as soon as reasonably practicable (and in any event within thirty-six (36) hours) of any changes to the material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide Parent (and in no event later than thirty-six (36) hours after such information is provided to them) with copies of any non-public information concerning the Business and the Company’s present or future performance, financial condition or results of operations, provided to any third party, to the extent such information has not been previously provided to Parent.
(e) Notwithstanding Section 4.11(b), at any time prior to the receipt of the Required Approval, the Company Board may make an Adverse Recommendation or terminate this Agreement pursuant to Section 6.1(g) in order to enter into any an Adverse Acquisition Agreement, if: (i) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and financial advisor that a Qualified Acquisition Proposal constitutes a Superior Proposal, (ii) the Company promptly notifies Parent, in writing, at least four (4) Business Days (the “Fiduciary Out Notice Period”) before taking such action of its intention to take such action with respect to the Qualified Acquisition Proposal, which notice shall state expressly that the Company has received a Qualified Acquisition Proposal that the Board has determined constitutes a Superior Proposal and that the Company Board intends to make an Adverse Recommendation or terminate this Agreement pursuant to Section 6.1(g); (iii) the Company attaches to such notice the most current version of the proposed agreement with respect to (which version shall be updated on a prompt basis), and the identity of the third-party making, such Qualified Acquisition Proposal; (iv) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to, during the Fiduciary Out Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Qualified Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Fiduciary Out Notice Period, there is any material revision to the terms of the Qualified Acquisition Proposal, or including, any revision in price, the Fiduciary Out Notice Period shall be extended, if applicable, to ensure that at least two (c2) participate Business Days remains in negotiations with, or provide information concerning Seller, Parent (with respect the Fiduciary Out Notice Period subsequent to the Business or time the Acquired AssetsCompany notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (v) the Company Board determines in good faith, or their respective assetsafter consulting with outside legal counsel and its financial advisor, liabilities or business to, any Person that in connection with any the case of a Qualified Acquisition Proposal. Seller and , such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent will promptly communicate to Buyer any solicitation or inquiry received by it and during the Fiduciary Out Notice Period in the terms and conditions of any proposal or inquiry that it may receive this Agreement, including pursuant to clause (e)(iv) of this Section 4.11. During the Fiduciary Out Notice Period, the Company shall be permitted to take the actions set forth in Sections 4.11(c)(i) and (ii) in respect of the Person that submitted such Qualified Acquisition Proposal.
(f) Nothing contained in this Section 4.11 shall be deemed to prohibit the Company or the Company Board or any committee thereof from (i) complying with its disclosure obligations under applicable Law with regard to an Acquisition Proposal, including talking and disclosing to its Shareholders a position contemplated by Rule 14d-9, Rule 14e-2 or Item 1012(a) of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting Regulation M-A promulgated under the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving the Business or the Acquired AssetsExchange Act, (ii) salecomplying with its disclosure obligations if, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part in the good faith judgment of the Business Company Board, after consultation with outside counsel, failure to disclose would reasonably be expected to be inconsistent with its obligations under applicable Law or the Acquired Assets, (iii) issuemaking accurate disclosure to the Shareholders of any factual information regarding the business, sale financial condition or results of operations of the Company or its Subsidiaries; provided, however, that nothing in this Section 4.11(f) shall permit the Company to make an Adverse Recommendation (including in compliance with Rule 14e-2, Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or other disposition applicable Law) without complying with Sections 4.11(d) and 4.11(e) and, for the avoidance of securities representing 25% doubt, any such disclosure described in clauses (i) and (ii) that does not reaffirm the Board Recommendation (other than a “stop, look and listen” communication or more similar communication of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (ivtype contemplated by Rule 14d-9(f) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect to the Retained Business, so long as the transactions do not have constitute an adverse effect on the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the BusinessAdverse Recommendation.
Appears in 1 contract
Sources: Merger Agreement (Liberator Medical Holdings, Inc.)
No Solicitation or Negotiation. Each Except as it may relate to Parent and subject to the terms of Seller Section 5.3(c), from the No-Shop Period Start Date (or, with respect to an Excluded Party (but only for so long as such Person is an Excluded Party), from 12:01 a.m. on the 15th calendar day after the No-Shop Period Start Date (the “Cut-Off Date”)) until the earlier to occur of the valid termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall cease and cause to be terminated any discussions or negotiations with any Person and its Affiliates and Representatives related to any Acquisition Proposal or that would if undertaken on or after the date hereof be prohibited by this Section 5.3(b). To the extent it has not already done so prior to the date of this Agreement, the Company shall promptly request that any Person that has executed a confidentiality agreement within the 12-month period prior to the date hereof in connection with its consideration of any Acquisition Proposal return or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries (and all analyses and other materials prepared by or on behalf of such Person that contains, reflects or analyzes such information) as promptly as practicable, in accordance with, and to the extent provided for in, any applicable confidentiality agreement and subject to any contractual retention rights of any such Person provided under such confidentiality agreements, and shall promptly terminate the data room access of any such Person. Subject to the terms of Section 5.3(c), from the No-Shop Period Start Date (or, with respect to any Excluded Party (but only for so long as such Person is an Excluded Party), the Cut-Off Date) until the earlier to occur of the valid termination of this Agreement pursuant to Article VIII and the Effective Time, the Company and its Subsidiaries will not, and will not authorize any of their respective Representatives to, and shall not publicly announce any intention to, directly or indirectly, (i) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or offer that would reasonably be expected to lead to, or that constitutes, an Acquisition Proposal; (ii) engage in, continue or otherwise participate in any discussions concerning, or provide access or otherwise furnish to any Person (other than Parent, Merger Sub or any designees of Parent covenants or Merger Sub), any non-public information relating to the Company or any of its Subsidiaries or any of their respective properties, books, records or personnel or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries (other than Parent, Merger Sub or any designees of Parent or Merger Sub), in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, or otherwise relating to or in connection with, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (other than (A) informing such Persons of the existence of the provisions contained in this Section 5.3 and agrees that between (B) contacting such Person or its Representatives to clarify the terms and conditions of any Acquisition Proposal); (iv) approve, endorse or recommend an Acquisition Proposal; or (v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract or agreement in principle, understanding or arrangement, in each case, relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract or agreement in principle, understanding or arrangement relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”) or any Contract requiring the Company to abandon, terminate or fail to consummate the Merger or the other Transactions; or (iv) resolve or agree to take any of the foregoing actions. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement pursuant to Article VIII and the Closing neither it nor Effective Time, the Company shall not terminate, amend, modify or waive, and shall enforce to the fullest extent permitted under applicable Law, the provisions of any standstill or confidentiality agreement including any such provision that prohibits or purports to prohibit a proposal being made to the Company Board; provided that the Company shall be permitted on a confidential basis to release or waive any standstill obligation solely to the extent necessary to permit the Person otherwise covered by such standstill obligation to submit an Acquisition Proposal to the Company Board on a confidential basis and solely to the extent that the failure to grant such release or waiver would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law. Any violation or breach of the restrictions or obligations set forth in this Section 5.3 by any Affiliate of the Company or any Representative of the Company or any of its AffiliatesSubsidiaries, officersin each case, directors, representatives acting on behalf of or agents will, subject to at the fiduciary duties direction of the Company or any of its Board of DirectorsSubsidiaries, (a) initiate the submission of any Acquisition Proposal, (b) enter into any agreement with respect to any Acquisition Proposal, or (c) participate in negotiations with, or provide information concerning Seller, Parent (with respect to the Business or the Acquired Assets), or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought shall be deemed to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent from (x) making any disclosure to Parent’s shareholders, or (y) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms a breach of this Section 7.6. “Acquisition Proposal” means any proposed (i) merger, consolidation or similar transaction involving 5.3 by the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent with respect Company to the Retained Business, so long same extent as if the transactions do not have an adverse effect on the Business action giving rise to such violation or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated breach had been undertaken by the Transaction Documents. Each of Seller and Parent covenants and agrees not to, without the prior written consent of Buyer, release any Person from or waive any provision of any confidentiality or standstill agreement relating to or affecting the BusinessCompany.
Appears in 1 contract
Sources: Merger Agreement (Otelco Inc.)
No Solicitation or Negotiation. Each of The Seller immediately shall cease and Parent covenants cause to be terminated all existing discussions, conversations, negotiations and agrees that between other communications with any Persons conducted prior to the date of this Agreement concerning any investment in the Seller. From and after the Closing neither date hereof, the Seller shall not, nor shall it nor permit any of its AffiliatesSubsidiaries to, nor shall they authorize or instruct any of their respective officers, directorsdirectors or employees to, representatives and shall use their best efforts to cause any advisor retained by them, not to, directly or agents will, subject to the fiduciary duties of its Board of Directorsindirectly through another Person, (ai) solicit, initiate the submission or knowingly encourage (including by way of furnishing information, or knowingly take any Acquisition Proposalother action designed to facilitate, (b) enter into any agreement with respect to any Acquisition ProposalBusiness Combination, or (cii) participate in any substantive discussions or negotiations withregarding any Business Combination; PROVIDED, or provide information concerning Sellerthat if, Parent (with respect at any time prior to the Business or the Acquired Assets)Closing, or their respective assets, liabilities or business to, any Person in connection with any Acquisition Proposal. Seller and Parent will promptly communicate to Buyer any solicitation or inquiry received by it and the terms of any proposal or inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it, or of any such negotiations or discussions being sought to be initiated with it. Nothing in this Section 7.6 shall be construed as prohibiting the Board of Directors of Parent the Seller (A) receives an unsolicited BONA FIDE proposal from a Proposing Party, (xB) making any disclosure determines in its good faith judgment that providing information to Parent’s shareholders, the Proposing Party or participating in negotiations or discussions with the Proposing Party could reasonably be expected to result in a Superior Proposal and (yC) responding to any unsolicited proposal or inquiry by advising receives specific legal advice from its outside attorneys that the Person making such proposal or inquiry Board of Director's of the terms Seller could be in violation of its fiduciary duties to the Seller's stockholders if it refused to consider such proposal, furnish information, engage in discussions and negotiations or enter into a Business Combination, as the case may be, provided that the Seller is not otherwise in breach of its obligations under this Section 7.6. “Acquisition Proposal” means any proposed 5.05, then the Seller may (iX) mergerafter giving the Purchaser 24 hours prior written notice, consolidation or similar transaction involving the Business or the Acquired Assets, (ii) sale, lease or other disposition directly or indirectly by merger, consolidation, share exchange or otherwise of all or any substantial part of the Business or the Acquired Assets, (iii) issue, sale or other disposition of securities representing 25% or more of Parent or Seller capital stock which would affect the Business or the Acquired Assets or (iv) transaction in which any Person proposes to acquire beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”)) of, or the right to acquire beneficial ownership of, or any “group” (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, the Business or the Acquired Assets. This Section 7.6 shall not apply to transactions by Parent furnish information with respect to the Retained Business, so long as Seller pursuant to a confidentiality agreement with such Proposing Party substantially similar to the transactions do not have an adverse effect on Confidentiality Agreement between the Business or the Acquired Assets or Seller’s or Parent’s ability to consummate the transactions contemplated by the Transaction Documents. Each of Seller and Parent covenants and agrees not toBirks, without dated April 19, 2002, (Y) after giving the Purchaser 24 hours prior written consent notice, engage in discussions and negotiations with the Proposing Party (Z) after giving the Purchaser 72 hours prior written notice, which indicates the identity of Buyerthe Proposing Party and the terms and conditions of the Superior Proposal, release any Person from or waive any provision of any confidentiality or standstill enter into an agreement relating with respect to or affecting a Business Combination with the BusinessProposing Party, subject to Section 8.03; PROVIDED, FURTHER, if the Seller receives a Superior Proposal, the Purchaser shall have the right to submit an alternative offer, which is at least equal to the Superior Proposal.
Appears in 1 contract