No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall cause each of its respective Representatives not to, directly or indirectly: (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, or encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal, and shall promptly (and in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representatives.
Appears in 2 contracts
Samples: Share Purchase Agreement (Sapiens International Corp N V), Share Purchase Agreement (Kardan Technologies Ltd.)
No Solicitation; Other Offers. From the date (a) Neither Parent nor any of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its termsSubsidiaries shall, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the nor shall Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall cause each any of its respective Subsidiaries authorize any of its or their Representatives not to, directly or indirectly: indirectly through another Person, (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, initiate or take any action to solicitknowingly facilitate or encourage the submission of any Acquisition Proposal, initiate(ii) enter into or participate in any discussions or negotiations with, facilitatefurnish any information relating to Parent or any of its Subsidiaries or afford access to the business, supportproperties, seekassets, inducebooks or records of Parent or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any inquirieseffort by any Third Party that has made, announcements is seeking to make or communications relating to, or the making of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead tomake, an Acquisition Proposal; , (iiiii) enter intoeither fail to make, participate inor withdraw or modify in a manner adverse to the Company or SpinCo, maintain the Parent Board Recommendation, fail to recommend against acceptance of any tender or continue any discussions exchange offer for Parent Common Stock within 10 Business Days after the commencement of such offer or negotiations relating toapprove, resolve to approve, adopt or recommend, or propose publicly to approve, resolve to approve, adopt or recommend, any Acquisition Proposal (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) either fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of Parent or any of its Subsidiaries unless the Parent Board determines, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Delaware Law, (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law, or (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer similar instrument relating to an Acquisition Proposal or take consummate any other action regarding Acquisition Proposal. It is agreed that any inquiryviolation of the restrictions on Parent set forth in this Section by any Subsidiary of Parent or any Representative of Parent or any of its Subsidiaries shall be a breach of this Section by Parent.
(b) Notwithstanding Section 7.04(a), expression at any time prior to the receipt of interestthe Parent Stockholder Approval:
(i) Parent, proposal directly or offer indirectly through its Representatives, may (A) engage in negotiations or discussions with any Third Party and its Representatives that, subject to Parent’s compliance with Section 7.04(a), has made after the date of this Agreement a bona fide, written Acquisition Proposal that constitutes, the Parent Board reasonably determines is or would reasonably be expected to lead toto a Superior Proposal and (B) furnish to such Third Party or its Representatives non-public information relating to Parent or any of its Subsidiaries pursuant to a confidentiality agreement (a copy of which shall be provided for informational purposes only to the Company) with such Third Party with terms that Parent determines in good faith are no less favorable to Parent than those contained in the Confidentiality Agreement and that include standstill obligations that Parent reasonably determines are customary and expressly allow Parent to comply with its obligations under this Section 7.04; provided that all such information (to the extent that such information has not been previously provided or made available to the Company) is provided or made available to the Company prior to or substantially concurrently with the time it is provided or made available to such Third Party; and
(ii) Subject to compliance with Section 7.04(a) and Section 7.04(d), the Parent Board may make an Adverse Recommendation Change (A) following receipt of a Superior Proposal or (B) in response to an Intervening Event, in each case referred to in the foregoing clauses (i) and (ii) only if the Parent Board determines, after consultation with outside legal counsel and its financial advisor, that the failure to take such action would be inconsistent with its fiduciary duties under Delaware Law. In addition, nothing contained herein shall prevent the Parent Board from complying with Rule 14e-2(a) under the 1934 Act with regard to an Acquisition ProposalProposal so long as any action taken or statement made to so comply is consistent with this Section 7.04; (iv) accept provided that any such action taken or statement made that relates to an Acquisition Proposal shall be deemed to be an Adverse Recommendation Change unless the Parent Board reaffirms the Parent Board Recommendation in such statement or enter into any agreement, arrangement or understanding in connection with such action.
(whether written or oralc) providing for Parent shall advise the consummation Company on a prompt basis of the status and terms of any transaction contemplated discussions and negotiations referred to in Section 7.04(b) with the Third Party. In addition, Parent shall notify the Company promptly (but in no event later than the next Business Day) after receipt by Parent (or any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (vof its Representatives) submit of any Acquisition Proposal or any matter related thereto request for information relating to Parent or any of its Subsidiaries or for access to the vote business, properties, assets, books or records of their shareholdersParent or any of its Subsidiaries by any Third Party that has made, is seeking to make or would reasonably be expected to make, an Acquisition Proposal. Each Selling ShareholderParent shall provide such notice orally and in writing and shall identify the Third Party making, each Company, the Purchaser and the Parent (provided that terms and conditions of, any such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal, indication or request. Parent shall keep the Company reasonably informed, on a prompt basis, of the status and details of any such Acquisition Proposal, indication or request and shall promptly (and but in any no event within 24 hourslater than the next Business Day after receipt) provide Purchaser to the Company copies of all correspondence and written materials sent or provided to Parent or any of its Subsidiaries or any of its or their Representatives that describes any material terms or conditions of any Acquisition Proposal (as well as written summaries of any oral communications addressing such matters). Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of Parent’s compliance with this Section 7.04(c).
(d) Further, the Shareholders RepresentativesParent Board shall not make an Adverse Recommendation Change, as applicable, with: unless (i) if such Adverse Recommendation Change is to be taken in circumstances involving or relating to an Acquisition Proposal, such Acquisition Proposal constitutes a Superior Proposal, (ii) Parent promptly provides written description notice to the Company at least five Business Days before taking such action of its intention to do so, containing (A) in the case of any expression action intended to be taken in circumstances involving an Acquisition Proposal, the material terms of interest, inquiry, proposal or offer relating to a possible such Acquisition Transaction that is received by them from any PersonProposal, including in the most current version of the proposed agreement under which such description Acquisition Proposal is proposed to be consummated and the identity of the Person from which Third Party making the Acquisition Proposal or (B) in the case of any action to be taken in circumstances where there has been an Intervening Event, a reasonably detailed description of the underlying facts giving rise to, and the reasons for taking, such expression of interestaction, inquiry, proposal or offer was received (the "Other Interested Party"); and (iiiii) the Company does not make, within five Business Days after its receipt of that written notification, an offer that (A) in the case of any action intended to be taken in circumstances involving an Acquisition Proposal, is at least as favorable to the stockholders of Parent as such Acquisition Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Acquisition Proposal shall require a copy new written notification from Parent and will give rise to an additional notice period under this Section 7.04(d) ending on the later of each written communication and a complete summary of each other communication transmitted on behalf (x) the expiration of the Other Interested Party original five Business Day notice period and (y) three Business Days following such new written notification) or (B) in the case of any action to be taken in circumstances where there has been an Intervening Event, obviates the need for taking such action. Parent agrees that, during the five-Business Day period referred to in this Section 7.04(d) (and three Business Day period in respect of a subsequent revised Acquisition Proposal), Parent and its Representatives shall negotiate in good faith with the Company and its Representatives regarding any revisions proposed by the Company to the terms of the Other Interested Party’s Representatives transactions contemplated by this Agreement.
(e) For purposes of this Agreement, “Superior Proposal” means an unsolicited written Acquisition Proposal for a majority of the outstanding shares of Parent Common Stock or a majority of the consolidated assets of Parent and its Subsidiaries on terms that the Parent Board determines by a majority vote, after considering the advice of a financial advisor and outside legal counsel and taking into account all the terms and conditions of the Acquisition Proposal, including any break-up fees, expense reimbursement provisions and conditions to any consummation (and expected timing of them or transmitted on behalf of any of them consummation relative to the Other Interested Party transactions contemplated by this Agreement), are more favorable to Parent’s stockholders than as provided hereunder (taking into account any proposal by the Company to amend the terms of this Agreement pursuant to Section 7.04(d)), which the Parent Board determines is reasonably likely to be consummated and for which financing, if a cash transaction (whether in whole or any of in part), is then fully committed or reasonably determined to be available by the Other Interested Party’s RepresentativesParent Board.
Appears in 2 contracts
Samples: Merger Agreement (Transportation Systems Holdings Inc.), Merger Agreement (Westinghouse Air Brake Technologies Corp)
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or Effective Time and the termination of this Agreement in accordance with its termsSection 7, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation NGH will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall NGH will use its reasonable best efforts to cause each the officers, directors, employees, investment bankers, consultants or other agents or representatives (collectively, "Agents") of its respective Representatives NGH not to, directly or indirectly: , (i) solicit, initiateinitiate or encourage the submission of any Acquisition Proposal, facilitate(ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal, support(iii) disclose any nonpublic information relating to NGH or any of its Subsidiaries to any Person who, seekto the knowledge of NGH, induce, entertain or encourageis considering making, or has made, an Acquisition Proposal or (iv) take any other action to solicit, initiate, facilitate, support, seek, induce, or encourage facilitate any inquiries, announcements or communications relating to, inquiries or the making of any submission, proposal or offer that constitutes, or that would could reasonably be expected to lead to, an Acquisition Proposal; . NGH will notify Parent promptly (iibut in no event later than 24 hours) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes after receipt by NGH of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto request for nonpublic information relating to NGH or any of its Subsidiaries by any Person who, to the vote knowledge of their shareholdersNGH, is making, or has made, an Acquisition Proposal. Each Selling ShareholderNGH shall promptly provide such notice orally and in writing and shall identify the Person making, each Companyand all terms and conditions of, any such Acquisition Proposal or request. NGH shall keep Parent promptly informed of the Purchaser status and details of any such Acquisition Proposal (including any amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6(b) and NGH shall provide to Parent copies of any written communications between NGH and the Parent (provided that such limitation will not apply with respect to Person making the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), Acquisition Proposal. NGH shall, and NGH shall use reasonable best efforts to cause each the Agents of its respective Representatives NGH to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of NGH from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, NGH may prior to receipt of the NGH Stockholder Approval negotiate or otherwise engage in substantive discussions with, and shall promptly (and furnish nonpublic information to, any Person in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: response to an unsolicited Acquisition Proposal by such Person if (i) a written description NGH has complied with the terms of any expression of interestSection 6(a), inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) the Board of Directors of NGH determines in good faith that such Acquisition Proposal is likely to result in a copy Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of each written communication and its fiduciary duties under applicable law, (iii) such Person executes a complete summary of each other communication transmitted on behalf of confidentiality agreement with terms no less favorable to NGH than those contained in the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them Confidentiality Agreement (except as to the Other Interested Party standstill provisions) and (iv) NGH shall have delivered to Parent prior written notice advising Parent that it intends to take such action.
(c) The Board of Directors of NGH shall be permitted to withdraw, or any modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 2 hereof, but only if (i) NGH has complied with the terms of Section 6(a), (ii) NGH has received an unsolicited Acquisition Proposal which the Other Interested Party’s RepresentativesBoard of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of NGH determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) NGH shall have delivered to Parent a prior written notice advising Parent that it intends to take such action.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Voting and Indemnity Agreement (Philip Morris Companies Inc), Voting and Indemnity Agreement (Nabisco Inc)
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Companyhereof, the Purchaser and Parent (provided that such limitation Company will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall will cause each its Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its respective Representatives Subsidiaries not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitatefacilitate or encourage the submission of any Acquisition Proposal, support, seek, induce(ii) engage in negotiations with, or encourage disclose any inquiriesnonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, announcements books or communications relating records of the Company or any of its Subsidiaries to, or any Person who has made or, to the making of any submissionCompany's knowledge, proposal or offer that constitutes, or that would reasonably be expected to lead tois considering making, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company. Notwithstanding the foregoing sentence, the Company may, in the press release announcing execution of this Agreement, include the following sentence: "Under the Agreement, the Company may furnish information and hold discussions with third parties in appropriate circumstances." Parent and the Company agree further that the issuance of a press release containing the foregoing sentence shall not constitute solicitation, initiation, facilitation or encouragement by the Company or its Subsidiaries of the submission of an Acquisition Proposal in violation of this Section 7.03(a). The Company will notify Parent promptly (but in no event later than two business days) after receipt by the Company (or any of its advisors) of any Acquisition Proposal, any indication that any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to considering making an Acquisition Proposal or take any other action regarding request for nonpublic information relating to the Company or any inquiryof its Subsidiaries or for access to the properties, expression books or records of interestthe Company or any of its Subsidiaries by any Person who has made or, proposal or offer that constitutesto the Company's knowledge, or would reasonably be expected to lead tois considering making, an Acquisition Proposal; (iv) accept . The Company shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal Proposal, indication or enter into any agreementrequest. The Company shall keep Parent fully informed, arrangement or understanding (whether written or oral) providing for on a current basis, of the consummation status and details of any transaction contemplated by any Acquisition Proposal or otherwise relating to any such Acquisition Proposal; , indication or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholdersrequest. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), The Company shall, and shall cause each its Subsidiaries and the directors, employees and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with its fiduciary duties or Rules 14d-9 and 14e-2 under the 1934 Act with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, the Company may negotiate or otherwise engage in substantive discussions with, and shall promptly (and in furnish nonpublic information to, any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: Person who delivers a written Acquisition Proposal if (i) a written description the Company has complied with the terms of this Section 7.03, including, without limitation, the requirement in Section 7.03(a) that it notify Parent promptly after its receipt of any expression Acquisition Proposal, (ii) the Board of interestDirectors of the Company has determined in good faith, inquirybased on the terms of such Acquisition Proposal, proposal including the proposed consideration per Share, that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith that such action is in the best interests of the Company's shareholders, (iv) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement and (v) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action.
(c) Except as provided in the next sentence, the Board of Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's shareholders. The Board of Directors of the Company shall be permitted to withdraw, or offer relating modify in a manner adverse to Parent, its recommendation to its shareholders referred to in Section 7.02 hereof and recommend or authorize the Company to enter into (and the Company may enter into) an agreement with respect to a possible Acquisition Transaction that is received by them from any PersonSuperior Proposal, including in such description but only if (i) the identity Company has complied with the terms of the Person from which such expression of interestthis Section 7.03, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy Superior Proposal is pending at the time the Board of each written communication and a complete summary of each other communication transmitted on behalf Directors of the Other Interested Party or Company determines to take any such action, (iii) the Board of Directors of the Other Interested Party’s Representatives Company determines in good faith that such action is in the best interests of the Company's shareholders, (iv) the Company shall have delivered to any Parent at least five business days prior written notice advising Parent that it intends to take such action and (v) Parent does not make, within such five business day period following receipt of them or transmitted on behalf such notice, an offer that the Board of any Directors of them the Company determines in good faith (after consultation with its financial advisors) to be as favorable to the Other Interested Party or any of the Other Interested Party’s RepresentativesCompany's shareholders as such Superior Proposal.
Appears in 2 contracts
Samples: Merger Agreement (Charming Shoppes Inc), Merger Agreement (Catherines Stores Corp)
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or Effective Time and the termination of this Agreement in accordance with its terms, each Selling Shareholder, each CompanyArticle 10, the Purchaser Company and Parent (provided that such limitation its Subsidiaries will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall the Company will use its reasonable best efforts to cause each the officers, directors, employees, investment bankers, consultants or other agents or representatives (collectively, "Agents") of the Company and its respective Representatives Subsidiaries not to, directly or indirectly: , (i) solicit, initiateinitiate or encourage the submission of any Acquisition Proposal, facilitate(ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal, support(iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, seekto the knowledge of the Company, induce, entertain or encourageis considering making, or has made, an Acquisition Proposal or (iv) take any other action to solicit, initiate, facilitate, support, seek, induce, or encourage facilitate any inquiries, announcements or communications relating to, inquiries or the making of any submission, proposal or offer that constitutes, constitutes or that would could reasonably be expected to lead to, to an Acquisition Proposal; . The Company will notify Parent promptly (iibut in no event later than 24 hours) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for after receipt by the purposes Company of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto request for nonpublic information relating to the vote Company or any of their shareholders. Each Selling Shareholderits Subsidiaries by any Person who, each to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Purchaser Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent (provided that such limitation will not apply with respect to copies of any written communications between the Parent or Purchaser other than where Company and any Person making the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause each its Subsidiaries and the Agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, the Company may prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise engage in substantive discussions with, and shall promptly (and furnish nonpublic information to, any Person in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: response to an unsolicited Acquisition Proposal by such Person if (i) a written description the Company has complied with the terms of any expression of interestSection 6.04(a), inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy the Board of each written communication and a complete summary of each other communication transmitted on behalf Directors of the Other Interested Party or any Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action.
(c) The Board of Directors of the Other Interested Party’s Representatives Company shall be permitted to any withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of them or transmitted on behalf Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of any Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of them to the Other Interested Party or any Directors of the Other Interested Party’s RepresentativesCompany determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Nabisco Inc), Merger Agreement (Philip Morris Companies Inc)
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with (a) The Company and its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation Subsidiaries will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall the Company will cause each the officers, directors and employees of the Company and its respective Representatives Subsidiaries not to, and the Company will not knowingly permit the investment bankers, attorneys, consultants and other agents or advisors of the Company and its Subsidiaries to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induceinitiate or knowingly facilitate or encourage the submission of any Acquisition Proposal (including by amending, or encourage granting any inquirieswaiver under, announcements the Rights Agreement), (ii) engage in discussions or communications negotiations with, or disclose any nonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to, or the making of any submission, proposal or offer that constitutesPerson who is considering making, or that would reasonably be expected to lead tohas made, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company. The Company will notify Parent promptly (but in no event later than 24 hours) after receipt by the Company (or any of its advisors) of any Acquisition Proposal, any indication that any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to considering making an Acquisition Proposal or take any other action regarding request for nonpublic information relating to the Company or any inquiryof its Subsidiaries or for access to the properties, expression books or records of interest, proposal the Company or offer that constitutesany of its Subsidiaries by any Person who is considering making, or would reasonably be expected to lead tohas made, an Acquisition Proposal; (iv) accept . The Company shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal Proposal, indication or enter into any agreementrequest. The Company shall keep Parent fully informed, arrangement or understanding (whether written or oral) providing for on a current basis, of the consummation status and details of any transaction contemplated by any Acquisition Proposal or otherwise relating to any such Acquisition Proposal; , indication or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholdersrequest. Each Selling Shareholder, each Company, the Purchaser The Company and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), its Subsidiaries shall, and the Company shall cause each the officers, directors, employees, agents and advisors of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, the Company may engage in discussions or negotiations with, and shall promptly (and furnish nonpublic information or access to, any Person in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: response to an unsolicited Acquisition Proposal by such Person if (i) a written description the Company has complied with the terms of any expression of interestSection 7.04(a), inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy the Board of each written communication and a complete summary of each other communication transmitted on behalf Directors of the Other Interested Party or any Company determines in good faith that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement and (iv) the Company shall have delivered to Parent three Business Days' prior written notice advising Parent that it intends to take such action.
(c) The Board of Directors of the Other Interested Party’s Representatives Company shall be permitted to any withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Sections 2.02 and 7.02 hereof, but only if (i) the Company has complied with the terms of them or transmitted on behalf Section 7.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of any Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of them to the Other Interested Party or any Directors of the Other Interested Party’s RepresentativesCompany determines in good faith, after consultation with outside legal counsel, that the failure to take such action could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent three Business Days' prior written notice advising Parent that it intends to take such action.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Sodexho Alliance S A), Merger Agreement (Sodexho Marriott Services Inc)
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactionsa) The Company shall not, and shall cause each not permit any of its respective Representatives not Subsidiaries to, directly and shall use its best efforts to ensure that its officers, directors or indirectly: (i) employees, or any investment bankers, consultants or other advisors or agents retained by it or any of its Subsidiaries do not solicit, initiate, facilitate, support, seek, induce, entertain initiate or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, or intentionally encourage any inquiries, announcements or communications relating to, or the making submission of any submission, proposal Acquisition Proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any engage in discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) or furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating with respect to an Acquisition Proposal or take knowingly facilitate any other action regarding any inquiry, expression of interest, proposal effort or offer that constitutes, or would reasonably be expected attempt to lead to, make an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), The Company shall, and shall cause each its Subsidiaries and the directors, employees and other advisors or agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition ProposalProposal and, to the extent within its power, request that all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisors be returned to the Company or destroyed. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal or making any disclosure to the Company's stockholders if, in the good faith judgment of the Board of Directors, after consultation with and advice from outside legal counsel, failure to make such disclosure would constitute a breach of the fiduciary duties of the Board of Directors under applicable law or otherwise violate applicable law.
(b) Notwithstanding the first sentence of Section 7.04(a), the Company may negotiate or otherwise engage in discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Board of Directors determines in good faith after consultation with and advice from the Company Financial Advisor or a financial advisor of nationally recognized reputation, that such Acquisition Proposal may result in a Superior Proposal and (ii) such Person executes a confidentiality agreement no less favorable to the Company than the Confidentiality Agreement (including the standstill provisions thereof).
(c) The Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours after its receipt, and in any event within 24 hours) provide Purchaser before providing any information to or entering into discussions or negotiations with any person in connection with the Shareholders Representatives, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"Proposal); and (ii) shall promptly provide Parent with a copy of each any written communication and a complete summary of each other communication transmitted on behalf Acquisition Proposal or amendments or supplements thereto; shall promptly inform Parent of the Other Interested Party status of any discussions or negotiations with such a third party and any material changes to the terms and conditions of such Acquisition Proposal; and shall promptly deliver to Parent a copy of any information delivered to such person which has not previously been delivered by the Company to Parent.
(d) Except as permitted by the second sentence of this Section 7.04(d), neither the Board of Directors nor any committee thereof shall (1) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, its recommendation to its stockholders, or take any action not explicitly permitted by this Agreement that would be inconsistent with, its approval of the Other Interested Party’s Representatives Offer and the Merger, (2) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (3) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement or document related to any Acquisition Proposal. Notwithstanding the foregoing, the Board of them or transmitted on behalf of any of them Directors shall be permitted (1) not to the Other Interested Party or any recommend to its stockholders acceptance of the Other Interested Party’s RepresentativesOffer and/or approval and adoption of this Agreement and the Merger, (2) to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders, (3) to approve or recommend any Superior Proposal or (4) to terminate this Agreement in accordance with Section 11.01(c)(ii) below and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (y) the Company has received an Acquisition Proposal which the Board of Directors determines in good faith after consultation with and advice from the Company Financial Advisor or other financial advisor of nationally recognized reputation constitutes a Superior Proposal and (z) the Board of Directors of the Company determines in good faith, after consultation with and advice from outside legal counsel, that the failure to take such action would not be consistent with its fiduciary duties under applicable law.
(e) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Comshare Inc), Merger Agreement (Comshare Inc)
No Solicitation; Other Offers. From (a) Neither the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall cause each Company nor any of its respective Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their Representatives not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, initiate or take any action to solicitfacilitate or encourage the submission of any Acquisition Proposal, initiate(ii) enter into or participate in any discussions or negotiations with, facilitatefurnish any information relating to the Company or any of its Subsidiaries or afford access to the business, supportproperties, seekassets, inducebooks or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any inquiries, announcements or communications relating toeffort by any Third Party that is seeking to make, or the making of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead tohas made, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish 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, (iv) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law or (v) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer similar instrument relating to an Acquisition Proposal or take Proposal. It is agreed that any other action regarding any inquiry, expression violation of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated restrictions on the Company set forth in this Section 6.04 by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal Representative of the Company or any matter related thereto to of its Subsidiaries shall be a breach of this Section by the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent .
(provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), b) The Company shall, and shall cause each of its respective Subsidiaries and its and their Representatives to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations negotiations, if any, with any Persons Third Party and its Representatives conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal, and . The Company shall promptly (and request that each Third Party, if any, that has executed a confidentiality agreement within the 24-month period prior to the date hereof in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) a written description connection with its consideration of any expression of interest, inquiry, proposal Acquisition Proposal return or offer relating destroy all confidential information heretofore furnished to a possible Acquisition Transaction that is received such Person by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party Company or any of the Other Interested Party’s Representatives to any of them its Subsidiaries (and all analyses and other materials prepared by or transmitted on behalf of such Person that contains, reflects or analyzes that information), and the Company shall provide to Parent all certifications of such return or destruction from such other Persons as promptly as practicable after receipt thereof. The Company shall use its reasonable best efforts to secure all such certifications as promptly as practicable. If any such Person fails to provide any required certification within the time period allotted in the relevant confidentiality agreement (or if no such period is specified, then within a reasonable time period after the date hereof), then the Company shall take all actions that may be reasonably necessary to secure its rights and ensure the performance of them to the Other Interested Party or any of the Other Interested Partysuch other party’s Representativesobligations thereunder as promptly as practicable.
Appears in 2 contracts
Samples: Merger Agreement (Formfactor Inc), Merger Agreement (Formfactor Inc)
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactionsa) The Company shall not, and shall cause each of its respective Representatives not permit any Subsidiary to, directly and shall use its best efforts to ensure that its officers, directors or indirectly: (i) employees, or any investment bankers, consultants or other agents retained by it or any Subsidiary to not, solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, initiate or encourage any inquiries, announcements or communications relating to, or the making submission of any submission, proposal Acquisition Proposal (as defined below) or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any engage in discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) or furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating with respect to an Acquisition Proposal or take knowingly facilitate any other action regarding any inquiry, expression of interest, proposal effort or offer that constitutes, or would reasonably be expected attempt to lead to, make an Acquisition Proposal; (iv) accept . The Company will notify Buyer within 48 hours of receipt by the Company or any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation Subsidiary of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto request for nonpublic information relating to the vote Company or any Subsidiary by any Person who, to the knowledge of their shareholders. Each Selling Shareholder, each the Company, is making or considering making or who has made, an Acquisition Proposal. The Company shall provide such notice orally and in writing including the Purchaser terms and the Parent (provided that conditions of any such limitation will not apply with respect to the Parent Acquisition Proposal or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), request. The Company shall, and shall cause each the Subsidiaries and directors, employees and other agents of its respective Representatives the Company and the Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with applicable rules and regulations under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company's stockholders if, in the good faith judgment of a majority of the disinterested members of the Board of Directors of the Company after receipt of a written opinion from its outside legal counsel, failure to so disclose could reasonably be deemed to be inconsistent with its fiduciary duties under applicable law. For purposes of this Section, a "disinterested member of the Board of Directors" is a member of the Board of Directors who is not an "interested director" as defined under DGCL.
(b) Notwithstanding the first sentence of this Section 4.5, the Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if the Company has complied with the terms of this Section 4.5, a majority of the disinterested members of the Board of Directors of the Company reasonably determines in good faith that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal and, after receipt of a written opinion from its outside legal counsel, that the failure to take such action could reasonably be deemed to be inconsistent with its fiduciary duties under applicable law, and such person executes a confidentiality agreement in customary form (including standstill provisions).
(c) Except as permitted by the second sentence of this Subsection 4.5(c), neither the Board of Directors of the Company nor any committee thereof shall promptly (and withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Buyer, or take any event within 24 hours) provide Purchaser action not explicitly permitted by this Agreement that would be inconsistent with its approval of the Transactions, approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or cause the Shareholders RepresentativesCompany to enter into any letter of intent, as applicableagreement in principle, with: acquisition agreement or similar agreement related to any Acquisition Proposal. The Board of Directors of the Company shall be permitted (i) a written description of any expression of interest, inquiry, proposal or offer relating not to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity recommend to its stockholders acceptance of the Person from which such expression Transactions and/or approval of interestthis Agreement, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) to withdraw, or modify in a copy manner adverse to Buyer, its recommendation to its stockholders referred to in Section 1.1 hereof, (iii) approve or recommend any Superior Proposal or (iv) terminate this Agreement and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (x) the Company has complied with the terms of each written communication and this Section 4.5, (y) the Company has received an unsolicited Acquisition Proposal which a complete summary of each other communication transmitted on behalf majority of the Other Interested Party or any disinterested members of the Other Interested Party’s Representatives to any Board of them or transmitted on behalf of any of them to the Other Interested Party or any Directors determines in good faith constitutes a Superior Proposal, and (z) a majority of the Other Interested Party’s Representativesdisinterested members of the Board of Directors of the Company determines in good faith, after receipt of a written opinion from its outside legal counsel, that the failure to take such action could reasonably be deemed to be inconsistent with its fiduciary duties under applicable law.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Stock Purchase Agreement (Universal Access Global Holdings Inc), Stock Purchase Agreement (Universal Access Global Holdings Inc)
No Solicitation; Other Offers. From (a) The Company shall, and shall cause the directors, officers, employees, investment bankers, attorneys, accountants and other agents of the Company (such directors, officers, employees, investment bankers, attorneys, accountants and other agents, collectively, “Representatives”) to, cease immediately and cause to be terminated all discussions and negotiations, if any, with any Persons conducted prior to the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply hereof with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) any Acquisition Proposal. The Company shall not, and shall cause each of its respective Representatives not to, directly or indirectlyto not: (i) solicit, initiate, facilitate, support, seek, induce, entertain initiate or encourage, knowingly encourage or take any action to solicit, initiate, facilitate, support, seek, induce, or encourage any inquiries, announcements or communications relating to, or facilitate (including by way of furnishing information) the making submission of any submission, proposal Acquisition Proposal or offer that constitutes, (ii) engage in discussions or negotiations or furnish to any Person any information with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal.
(b) The Company will notify Parent promptly (but in no case later than 48 hours after actual receipt by an officer or director of the Company) of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal and shall provide Parent the material terms and conditions of such Acquisition Proposal, request or take any other action regarding any inquiry, expression including the identity of interestthe Person making such Acquisition Proposal, proposal request or offer inquiry and a copy of all written materials provided by or on behalf of such Person in connection with the Acquisition Proposal, request or inquiry. The Company shall provide Parent with 48 hours prior notice (or such lesser prior notice as is provided to the members of its board of directors) of any meeting of its board of directors (or any committee thereof) at which its board of directors (or any committee thereof) is expected to consider any Acquisition Proposal or any such inquiry or to consider providing nonpublic information to any Person that constitutes, or would reasonably be expected to lead to, to an Acquisition Proposal; . The Company shall notify Parent, in writing, of any decision of its board of directors (ivor any committee thereof) accept as to whether to enter into discussions or negotiations concerning any Acquisition Proposal or enter to provide nonpublic information or data to any Person that would reasonably be expected to lead to an Acquisition Proposal, which notice shall be given as promptly as practicable after such meeting (and in any event no later than 24 hours after such determination was reached and 24 hours prior to entering into any agreementdiscussions or negotiations or providing any nonpublic information or data to any such Person). The Company shall keep Parent informed with prompt oral or written notice of the status and material terms of any such Acquisition Proposal, arrangement request or understanding (whether inquiry, setting forth all such information as reasonably necessary to keep Parent reasonably informed and shall promptly provide Parent a copy of all written materials subsequently provided to, by or oral) providing on behalf of such Person in connection with such Acquisition Proposal, request or inquiry. Notwithstanding anything to the contrary in Section 6.04(a), to the extent necessary for the consummation Company’s board of directors to comply with its fiduciary duties under applicable law, as determined in good faith by the Company’s board of directors after consultation with outside counsel, prior to the adoption of this Agreement by the stockholders of the Company, the Company may negotiate or otherwise engage in substantive discussions with, and furnish information to, any transaction contemplated by Person in response to an unsolicited, bona fide written Acquisition Proposal from a third party after the execution of this Agreement if (i) such Acquisition Proposal did not result in a breach of this Section 6.04 and the Company has complied in all material respects with Section 6.04 and (ii) the board of directors of the Company determines in good faith (after consultation with outside counsel and its financial advisor) that such Acquisition Proposal is, or could reasonably be expected to result in a Superior Proposal; provided, however, (A) the Company receives from such third party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf in substantially the form of the Confidentiality Agreement, (B) contemporaneously with furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished) and (C) the Company shall not amend, or grant a waiver or release under, any standstill or similar agreement with respect to the any Company Common Stock. Nothing contained in this Agreement shall prevent the Company or its board of directors from complying with Rule 14d-9, Item 1012(a) of Regulation M-A and Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or otherwise making any disclosure to the Company’s stockholders required by applicable law or regulation.
(c) Except as permitted in this Section 6.04(c), the board of directors (or any committee thereof) of the Company shall not (i) withdraw or modify (in a manner adverse to Parent) its recommendation to the Company’s stockholders referred to in Section 2.08 and Section 6.02(e) hereof (the “Company Recommendation”) or take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of the Merger, (ii) approve, recommend or take any position other than to recommend rejection (including modifying any recommendation of rejection) of, any Acquisition Proposal, (iii) cause or permit the Company to enter into (or publicly propose that the Company enter into) any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement or similar agreement with respect to any Acquisition Proposal or (iv) approve or recommend any Acquisition Proposal or any agreement, understanding or arrangement relating to any Acquisition Proposal; , except for a confidentiality agreement, waiver or release referred to in Section 6.04(b) entered into in the circumstances referred to in Section 6.04(b). Notwithstanding the foregoing, prior to the adoption of this Agreement and the Merger by the Company Stockholders, the board of directors of the Company shall be permitted (i) not to recommend to the Company’s stockholders approval and adoption of this Agreement and the Merger, (ii) to withdraw or modify (in a manner adverse to Parent) the Company Recommendation (a “Change in the Company Recommendation”), (iii) approve or recommend any Superior Proposal or (viv) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser terminate this Agreement and the Parent (provided that such limitation will not apply in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (A) the Parent Company has complied with the terms of this Section 6.04, (B) the Company has received an unsolicited Acquisition Proposal which the board of directors (or Purchaser other than where any committee thereof) determines in good faith, after consultation with its financial advisors, constitutes a Superior Proposal, (C) the underlying transaction is board of directors (or any committee thereof) of the Company determines in good faith, after consultation with outside legal counsel and its financial advisors, that the failure to take such action could reasonably expected be deemed to be an alternative transaction inconsistent with its fiduciary duties under applicable law, (D) the Company has delivered a prior written notice advising Parent that it intends to take such action and (E) Parent does not make, within three Business Days after the receipt of such notice, a proposal that the board of directors (or any committee thereof) of the Company determines in good faith, after consultation with its financial adviser, is no less favorable to the Transactions)stockholders of the Company than such Superior Proposal or that results in the board of directors (or any committee thereof) of the Company no longer being required to make a Change in the Company Recommendation in order to comply with its fiduciary obligations under applicable law. The Company agrees that, shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted during the three Business Day period prior to effecting a Change in the Company Recommendation or on terminating this Agreement to enter into an acquisition agreement resulting from such Superior Proposal, the date Company and its Representatives shall negotiate in good faith with Parent and its Representatives regarding any revisions to the terms of the transaction contemplated by this Agreement that are proposed by Parent.
(d) For purposes of this Agreement with respect to any Acquisition Proposal, and shall promptly (and in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representatives.Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Crane & Co Inc), Merger Agreement (American Bank Note Holographics Inc)
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or Effective Time and the termination of this Agreement in accordance with its termsArticle 11, each Selling Shareholder, each Company, neither the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall cause each Company nor any of its respective Representatives not toSubsidiaries nor any of the officers, directors, employees, investment bankers, consultants or other agents of the Company and its Subsidiaries will, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, induce or take any action to solicitknowingly facilitate (including, initiate, facilitate, support, seek, induce, or encourage any inquiries, announcements or communications relating to, or without limitation by way of furnishing information) the making submission of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto inquiries with respect thereto, (ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the vote Company or any of their shareholders. Each Selling Shareholderits Subsidiaries to any Person who, each to the knowledge of the Company, is making or considering making, or who has made, an Acquisition Proposal. The Company will notify Parent as promptly as practicable (but in no event later than 24 hours) after receipt by the Purchaser Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making or considering making or who has made, an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent informed of the status and details (provided that including, without limitation, amendments or proposed amendments) of any such limitation will not apply with respect to the Parent Acquisition Proposal or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), request. The Company shall, and shall cause each its Subsidiaries and the directors, employees and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date hereof with respect to any Acquisition Proposal and, to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their Affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal.
(b) Notwithstanding the first sentence of Section 7.04(a), the Company may, until the earliest to occur of the Offer Completion Date, a purchase of Company Stock pursuant to the Option, and shall promptly the Company Stockholders Meeting (such earliest date the "Cutoff Date"), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: response to an unsolicited Acquisition Proposal by such Person if (i) a written description the Company has complied with the terms of any expression of interestthis Section 7.04, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy the Board of each written communication and a complete summary of each other communication transmitted on behalf Directors of the Other Interested Party Company determines in good faith that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal and, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (including the standstill provisions unless the Company shall have amended the Confidentiality Agreement to modify the standstill provisions therein to be no more restrictive of Parent than such Person is restricted pursuant to such confidentiality agreement) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. The Company shall provide Parent any information regarding the Company or its Subsidiaries provided to any Person making an Acquisition Proposal which was not previously provided to Parent.
(c) Except as permitted in this Section 7.04(c), neither the Board of Directors of the Other Interested Party’s Representatives Company nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, or take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of the Offer and the Merger or with the recommendation to stockholders referred to in Section 7.02 hereof, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement related to any of them or transmitted on behalf of any of them Acquisition Proposal. Notwithstanding the foregoing, prior to the Other Interested Party or any Cutoff Date, the Board of Directors of the Other Interested Party’s RepresentativesCompany shall be permitted not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, or to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 2.02 and/or Section 7.02 hereof, but only if (i) the Company has complied with the terms of this Section 7.04, (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action could reasonably be deemed to be inconsistent with its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Gannett Co Inc /De/), Merger Agreement (Central Newspapers Inc)
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactionsa) The Company shall not, and shall cause each not permit any of its respective Representatives Subsidiaries to, and shall cause its officers, directors and employees, and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it or any of its Subsidiaries not to, directly or indirectly: (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, initiate or encourage any inquiries, announcements or communications relating to, or the making submission of any submission, proposal Acquisition Proposal (as hereinafter defined) or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any engage in discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) or furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating with respect to an Acquisition Proposal or take knowingly facilitate any other action regarding any inquiry, expression of interest, proposal effort or offer that constitutes, or would reasonably be expected attempt to lead to, make an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for . Any violation of the consummation of any transaction contemplated foregoing restrictions by any Acquisition Proposal of the Company's representatives, whether or otherwise relating not such representative is so authorized and whether or not such representative is purporting to any Acquisition Proposal; act on behalf of the Company or (v) submit any Acquisition Proposal or any matter related thereto to otherwise, shall be deemed a breach of this Agreement by the vote of their shareholdersCompany. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), The Company shall, and shall cause each its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal and, to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company's stockholders that, in the good faith judgment of the majority of the members of the Company Board, upon recommendation of the Special Committee after consultation with and advice from its outside legal counsel, is required by applicable Law.
(b) Notwithstanding the first sentence of Sections 6.05(a), prior to the time of acceptance of Shares pursuant to the Offer and subject to the provisions of this Section 6.05(b) and Section 6.05(c), the Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by such Person to acquire in any manner at least fifty percent of the Shares outstanding or fifty percent of the consolidated assets of the Company if (i) a majority of the Company Board determines in good faith, upon the recommendation of the Special Committee after the Special Committee has received the advice of Xxxxxxxx Xxxxx or another nationally recognized financial advisor, that such Acquisition Proposal would reasonably be expected to result in a Superior Proposal (as hereinafter defined) and, after consultation with and advice from outside legal counsel, that the failure to take such action would cause the Company Board to breach its fiduciary duties under applicable Law, and (ii) such Person executes a confidentiality agreement in a form no less favorable to the Company than the Confidentiality Agreement. Prior to providing any information to or entering into discussions or negotiations with any Person in connection with an Acquisition Proposal by such Person, the Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the Person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on a prompt basis of the status of any discussions or negotiations with such a third party, and any material changes to the terms and conditions of such Acquisition Proposal, and shall promptly give Parent a copy of any information delivered to such Person which has not previously been provided or made available to Parent. The Company shall not waive any standstill or confidentiality provisions contained in agreements to which the Company is a party or to which the Company is subject unless the Company Board determines in good faith, upon the recommendation of the Special Committee after consultation by the Special Committee with and advice from its outside legal counsel, that the failure to take such action would cause the Company Board to breach its fiduciary duties under applicable Law.
(and in c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a written description of manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereof, or take any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction action not explicitly permitted by this Agreement that is received by them from any Person, including in such description the identity would be inconsistent with its approval of the Person from which such expression of interestOffer and the Merger, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of each written communication and a complete summary intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of each other communication transmitted on behalf acceptance of the Other Interested Party or any Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of the Other Interested Party’s Representatives Offer and/or approval and adoption of this Agreement and the Merger, (ii) to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereof, (iii) to approve or recommend any Superior Proposal or (iv) to terminate this Agreement in accordance with Section 8.01(c)(ii) hereof and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if in each case (x) the Company has received an Acquisition Proposal which the Company Board determines in good faith, upon the recommendation of them or transmitted on behalf of any of them to a nationally recognized financial advisor, constitutes a Superior Proposal, (y) the Other Interested Party or any Company Board determines in good faith, upon the recommendation of the Other Interested Party’s RepresentativesSpecial Committee after consultation by the Special Committee with and advice from its outside legal counsel, that the failure to take such action would cause the Company Board to breach its fiduciary duties under applicable Law and (z) after five Business Days have elapsed following the Company's delivery to Parent of written notice advising Parent that the Company Board has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal and identifying the Person making the Superior Proposal; provided, however, that the Company shall not enter into an agreement with respect to a Superior Proposal unless the Company shall terminate this Agreement in accordance with Section 8.01(c)(ii).
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Raytel Medical Corp), Merger Agreement (Raytel Medical Corp)
No Solicitation; Other Offers. From and after receipt of the date of this Agreement Written Consent containing the Company Stockholder Approval until the earlier of the respective Closing Date Effective Time or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Companywithout the prior consent of Parent, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Company shall not, and shall cause each of its Representatives and each of the Acquired Companies (and each of their respective Representatives Representatives) not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, entertain or encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; Parent, (iii) furnish to any Person other than to each other Parent any information that is the Company believes or would reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; , (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; Proposal or the Interim Acquisition, or (v) submit any Acquisition Proposal Proposal, the Interim Acquisition or any matter related thereto to the vote of their shareholdersthe stockholders of the Company. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), The Company shall, and shall cause each of its Representatives and each of the other Acquired Companies (and each of their respective Representatives Representatives) to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal, and shall promptly (and in any event within 24 twenty four (24) hours) provide Purchaser or the Shareholders Representatives, as applicable, Parent with: (i) an oral and a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction Proposal, or any request for information that would reasonably be expected to be used for the purposes of formulating any inquiry, proposal or offer regarding a possible Acquisition Proposal, that is received by them any Acquired Company or any Representatives of any Acquired Company from any PersonPerson (other than Parent), including in such description the identity of the Person from which such expression of interest, inquiry, proposal proposal, offer or offer request for information was received (the "“Other Interested Party"”); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any Acquired Company or any Representatives of them any Acquired Company or transmitted on behalf of any Acquired Company or any Representatives of them any Acquired Company to the Other Interested Party or any of the Other Interested Party’s Representatives.
Appears in 1 contract
No Solicitation; Other Offers. From During the date of this Agreement until the earlier of the respective Pre-Closing Date or the termination of this Agreement in accordance with its termsPeriod, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Seller shall not, and shall cause each of its respective Representatives not to, directly or indirectly: , (ia) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, entertain or encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (iib) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; Purchaser, (iiic) furnish to any Person other than to each other Purchaser any information that is Seller believes or should reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; Proposal or (ivd) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), Seller shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal, including suspending such Persons’ access to any electronic or physical data room and requesting the return of all confidential information distributed to such Persons. Seller shall promptly (and in any event within 24 hours) provide provide, to the extent not prohibited by the terms of any confidentiality or non-disclosure agreement in existence as of the date hereof, Purchaser or the Shareholders Representatives, as applicable, with: (iy) an oral and a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction Proposal, or any request for information that could reasonably be expected to be used for the purposes of formulating any inquiry, proposal or offer regarding a possible Acquisition Proposal, that is received by them Seller or its Representatives from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal proposal, offer or offer request for information was received (the "“Other Interested Party"”); , and (iiz) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them Seller or its Representatives or transmitted on behalf of any of them Seller or its Representatives to the Other Interested Party or any of the Other Interested Party’s Representatives.
Appears in 1 contract
Samples: Asset Purchase Agreement (Maxwell Technologies Inc)
No Solicitation; Other Offers. From (a) During the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each CompanyInterim Period, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Company shall not, and shall cause each of its respective Representatives not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, entertain or encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; the Purchaser, (iii) furnish to any Person other than to each other the Purchaser any information that is the Company believes or should reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; , (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or , (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each the shareholder of the Company, the Purchaser and the Parent (provided that such limitation will not apply vi) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Parent Company or Purchaser other than where (vii) resolve, propose or agree to do any of the underlying transaction is reasonably expected foregoing. From and following the date of this Agreement, the Company further agrees not to be an alternative transaction to release any Persons described in the Transactions), preceding sentence from any obligations under such non- disclosure or similar agreements without the prior written consent of the Purchaser.
(b) The Company shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal, and shall promptly (and in any event within 24 hours) provide the Purchaser or the Shareholders Representatives, as applicable, with: (i) with an oral and a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction Proposal, or any request for information that could reasonably be expected to be used for the purposes of formulating any inquiry, proposal or offer regarding a possible Acquisition Proposal, that is received by them the Company or any Representative of the Company from any PersonPerson (other than the Purchaser), including in such description the identity of the Person from which such expression of interest, inquiry, proposal proposal, offer or offer request for information was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representativesreceived.
Appears in 1 contract
Samples: Share Purchase Agreement
No Solicitation; Other Offers. From the date of this Agreement until Until the earlier of the respective Closing Date Effective Time or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, neither the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall notCompany nor Indigo shall, and each shall cause each of its respective Representatives not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain initiate or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, initiate or encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; Parent, (iii) furnish to any Person other than to each other Parent any information that is Indigo believes or should reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; Proposal or (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser of Indigo and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), Company shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. Indigo shall, and shall promptly within two business (and in 2) days after receipt, advise Parent of (A) any event within 24 hours) provide Purchaser formal or the Shareholders Representativesinformal inquiry, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible an Acquisition Transaction that is received by them from any PersonProposal, including in such description (B) the material terms thereto and (C) the identity of the Person from which or group making such inquiry, expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representativesoffer.
Appears in 1 contract
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or Effective Time and the termination of this Agreement in accordance with its terms, each Selling Shareholder, each CompanyArticle 8, the Purchaser Company and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) its Subsidiaries shall not, nor shall they permit any of their Affiliates to, nor shall they authorize any of the officers, directors, employees, investment bankers, consultants and shall cause each other agents and Affiliates of the Company and its respective Representatives not Subsidiaries to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, induce or take any action to solicit, initiate, facilitate, support, seek, induce, or encourage any inquiries, announcements or communications relating to, or knowingly facilitate (including by way of furnishing information) the making submission of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto inquiries with respect thereto, (ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the vote Company or any of their shareholders. Each Selling Shareholderits Subsidiaries to any Person who, each to the Knowledge of the Company, is making or considering making, or who has made, an Acquisition Proposal. The Company will notify Parent as promptly as practicable (but in no event later than 24 hours) after receipt by the Purchaser Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries by any Person who, to the Knowledge of the Company, is making or considering making or who has made, an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent informed of the status and details (provided that including amendments or proposed amendments) of any such limitation will not apply with respect to the Parent Acquisition Proposal or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), request. The Company shall, and shall cause each its Subsidiaries and the directors, employees and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition Proposal and, to the extent within its power, to recover or on cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their Affiliates, representatives and advisors.
(b) Notwithstanding the first sentence of Section 6.05(a), the Company may, until the Company Stockholder Meeting (the “Cutoff Date”), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of this Section 6.05, (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal and, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, and (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (including the standstill provisions unless the Company shall have amended the Confidentiality Agreement to modify the standstill provisions therein to be no more restrictive of Parent than such Person is restricted pursuant to such confidentiality agreement). The Company shall provide Parent any information regarding the Company or its Subsidiaries provided to any Person making an Acquisition Proposal which was not previously provided to Parent. Nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with Rule 14d-9, Item 1012(a) of Regulation M-A and Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company’s stockholders required by applicable law or regulation.
(c) Except as permitted in this Section 6.05(c), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, or take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of this Agreement and the Merger or with the recommendation to stockholders referred to in Section 2.08 hereof, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the Cutoff Date, the Board of Directors of the Company shall be permitted not to recommend to its stockholders approval and adoption of this Agreement and the Merger, or to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 2.08 hereof (each, an “Adverse Recommendation Change”), but only if (i) the Company has complied with the terms of this Section 6.05, (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action could reasonably be deemed to be inconsistent with its fiduciary duties under applicable law, (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action, together with a full and complete copy of the Superior Proposal at least three Business Days prior to the Adverse Recommendation Change (it being understood and agreed that any amendment to the financial terms or any other material terms of such Superior Proposal shall require a new notice and a new three-Business Day period), (v) the Company shall have negotiated in good faith with Parent during such three-Business Day period to make such amendments to the terms and conditions of this Agreement as would enable the Board of Directors of the Company to proceed with its recommendation of this Agreement (as so amended) and the Merger and not make the Adverse Recommendation Change, and (vi) prior to the expiration of such three-Business Day period, Parent fails to make a proposal to adjust the terms and conditions of this Agreement that the Board of Directors of the Company determines in good faith (after consultation with its financial advisors) to be at least as favorable as the Superior Proposal.
(d) During the period from the date of this Agreement with respect to until the Effective Time or earlier termination of this Agreement, the Company shall not terminate, amend, modify or waive any Acquisition Proposal, and shall promptly (and in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) a written description provision of any expression of interest, inquiry, proposal confidentiality or offer standstill agreement relating to a possible an Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from Proposal to which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party it or any of its Subsidiaries is a party (other than any involving Parent or its Subsidiaries). During such period, the Other Interested Party’s Representatives Company agrees to any of them or transmitted on behalf enforce, to the fullest extent permitted under applicable law, the provisions of any such agreement, including obtaining injunctions to prevent any breaches of them such agreements and to enforce specifically the Other Interested Party terms and provisions thereof in any court of the United States or any of the Other Interested Party’s Representativesstate thereof having jurisdiction.
Appears in 1 contract
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company(a) Except as required under applicable Law, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Company shall not, and shall cause each not authorize or permit any of its respective Representatives not Subsidiaries, officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, initiate or take any action to solicitfacilitate or encourage the submission of any Acquisition Proposal, initiate(ii) enter into or participate in any discussions or negotiations with, facilitatefurnish any confidential information relating to the Company or any of its Subsidiaries or afford access to the business, supportproperties, seekassets, inducebooks or records of the Company or any of its Subsidiaries to, otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any inquirieseffort by, announcements or communications relating toany third party that is seeking to make, or the making of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead tohas made, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish grant any waiver or release under any standstill or similar agreement to any Person other than to each other any information that is reasonably expected to be used for which the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal Company or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent its Subsidiaries is a party.
(provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), b) The Company shall, and shall cause each its Subsidiaries, officers, directors, employees, investment bankers, attorneys and other agents and advisors to, notify ABI promptly (but in no event later than 24 hours) after receipt by any of such Persons of any Acquisition Proposal, any indication by a third party to any of such Persons that it is considering making an Acquisition Proposal or any request for confidential information relating to the Company or any of its respective Representatives Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party that the Company reasonably believes may be considering making, or has made, an Acquisition Proposal. The Company shall, and shall cause all such other Persons to identify the third party making, and the terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall, and shall cause all such other Persons to, keep ABI fully informed, on a current basis, of the status and details of any such Acquisition Proposal, indication or request. The Company shall, and shall cause all such other Persons to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons third party conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal, Proposal and shall promptly use its commercially reasonable best efforts to cause any such Party (and or its agents or advisors) in possession of confidential information about the Company or any event within 24 hours) provide Purchaser of its Subsidiaries that was furnished by or the Shareholders Representatives, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party Company to return or destroy all such information.
(c) For the avoidance of doubt, nothing in this Agreement shall restrict (i) any holder of Company Shares from considering, negotiating or accepting any Acquisition Proposal, and nothing herein shall be construed to require any holder of Company Shares to participate or sell Company Shares in the Offer or through the Trust, (ii) ABI or its appointed directors of the Other Interested Party’s Representatives to Company from voting against any of them or transmitted on behalf of any of them to the Other Interested Party or any Acquisition Proposal, and (iii) performance of the Other Interested Party’s RepresentativesDIFA Merger Agreement.
Appears in 1 contract
No Solicitation; Other Offers. (i) From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its termsor the Effective Time, each Selling Shareholder, each Companywhichever first occurs, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Company shall not, and shall cause each the Subsidiaries not to, and shall use its best efforts to cause the officers, directors, employees, affiliates, representatives and other agents (including attorneys, investment bankers and accountants) of its respective Representatives the Company and the Subsidiaries not to, directly or indirectly: (i) , solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, initiate or encourage any inquiriesinquiry, announcements or communications relating toproposal, or the making indication of any submission, proposal interest or offer from any person that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept to any Acquisition Proposal (as hereinafter defined) or enter into discussions or negotiate with any agreement, arrangement person or understanding (whether written or oral) providing for the consummation entity in furtherance of any transaction contemplated such inquiries, proposals, indications of interest or offers or to obtain or approve any Acquisition Proposal, or agree to or endorse any Acquisition Proposal, and the Company shall immediately notify Acquiror of all relevant terms of any such inquiries, proposals, indications of interest or offers received by the Company or any Subsidiary or by any Acquisition Proposal such officer, director, employee, affiliate, representative or otherwise agent, relating to any Acquisition Proposalof such matters, any material change in the details (including any amendments or proposed amendments) of any such inquiries, proposals, indications of interest or offers, the identity of each of the persons or entities making such inquiries, proposals, indications of interest or offers, and, if any such inquiry, proposal, indication of interest or offer is in writing, the Company shall immediately deliver a copy thereof to Acquiror; or (v) submit any provided, however, that if, prior to the Effective Time, the Company shall receive an Acquisition Proposal or any matter related thereto to (that was not solicited after January 9, 1998), from a New Bidder (as defined below) that the vote Board of their shareholders. Each Selling Shareholder, each Directors of the Company, after receiving the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), shall, and shall cause each written advice of its respective Representatives tolegal counsel, immediately cease reasonably believes that it has a fiduciary duty to consider, then the Company, without violating this Agreement, may thereafter furnish information to and cause to be terminated any and all existing activities, enter into discussions or negotiations with such New Bidder making such Acquisition Proposal; provided that, before furnishing any Persons conducted prior information to, or entering into discussions or negotiations with, any such New Bidder, the Company shall have obtained an executed confidentiality agreement containing confidentiality, "standstill" and other customary terms and conditions no less favorable to the Company than the terms and conditions of the Confidentiality Agreement (as defined in Section 9.5). Neither the Board of Directors of the Company, nor any committee thereof, shall (A) withdraw or on modify, in a manner adverse to Acquiror, the date approval or recommendation by the Board of Directors or any such committee thereof of this Agreement or the Merger, (B) approve or recommend any Acquisition Proposal, (C) enter into any agreement with respect to any Acquisition Proposal, and shall promptly (and D) take any action to facilitate any other Acquisition Proposal in any event within 24 hoursrespect, or (E) provide Purchaser or the Shareholders Representativesterminate this Agreement in connection with any Acquisition Proposal; provided that, as applicable, with: (inothing contained in this Section 4.1(a) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any other provision of this Agreement shall prevent the Other Interested Party’s Representatives to any Board of them or transmitted on behalf of any of them to the Other Interested Party Directors or any committee thereof, after receiving an Acquisition Proposal as described in the immediately preceding sentence that, after receiving the written advice of its legal counsel, the Other Interested Party’s Representatives.Board of Directors reasonably believes that it has a fiduciary duty to consider, from considering, negotiating, approving
Appears in 1 contract
Samples: Merger Agreement (Mediq Inc)
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or Effective Time and the termination of this Agreement in accordance with its terms, each Selling Shareholder, each CompanyArticle 10, the Purchaser Company and Parent (provided that such limitation its Subsidiaries will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall the Company will use its reasonable best efforts to cause each the officers, directors, employees, investment bankers, consultants or other agents or representatives (collectively, "AGENTS") of the Company and its respective Representatives Subsidiaries not to, directly or indirectly: , (i) solicit, initiateinitiate or encourage the submission of any Acquisition Proposal, facilitate(ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal, support(iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, seekto the knowledge of the Company, induce, entertain or encourageis considering making, or has made, an Acquisition Proposal or (iv) take any other action to solicit, initiate, facilitate, support, seek, induce, or encourage facilitate any inquiries, announcements or communications relating to, inquiries or the making of any submission, proposal or offer that constitutes, constitutes or that would could reasonably be expected to lead to, to an Acquisition Proposal; . The Company will notify Parent promptly (iibut in no event later than 24 hours) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for after receipt by the purposes Company of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto request for nonpublic information relating to the vote Company or any of their shareholders. Each Selling Shareholderits Subsidiaries by any Person who, each to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Purchaser Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent (provided that such limitation will not apply with respect to copies of any written communications between the Parent or Purchaser other than where Company and any Person making the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause each the Agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition ProposalProposal or request. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal or shall prevent NA and its Agents from taking any action permitted under Section 6.04 of the NA Merger Agreement.
(b) Notwithstanding the foregoing, the Company may, at any time prior to the time the Company's stockholders shall have voted to approve this Agreement, negotiate or otherwise engage in substantive discussions with, and shall promptly (and furnish nonpublic information to, any Person in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: response to an unsolicited Acquisition Proposal by such Person if (i) a written description the Company has complied with the terms of any expression of interestSection 6.04(a), inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy the Board of each written communication and a complete summary of each other communication transmitted on behalf Directors of the Other Interested Party or any Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action.
(c) The Board of Directors of the Other Interested Party’s Representatives Company shall be permitted to any withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of them or transmitted on behalf Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of any Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of them to the Other Interested Party or any Directors of the Other Interested Party’s RepresentativesCompany determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent 24 hours prior written notice advising Parent that it intends to take such action.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Rj Reynolds Tobacco Holdings Inc)
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier acceptance for payment by Merger Subsidiary of the respective Closing Date Shares tendered into the Offer or the earlier termination of this Agreement in accordance with its terms, each Selling Shareholder, each Companyhereof, the Purchaser and Parent (provided that such limitation Company will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall will cause each its Subsidiaries and the officers, directors, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its respective Representatives Subsidiaries not to, directly or indirectly: to (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action (y) to solicitsolicit or (z) for the primary purpose of initiating or encouraging the submission of any Acquisition Proposal, initiate, facilitate, support, seek, induce(ii) engage in substantive discussions or negotiations with, or encourage disclose any inquiriesmaterial nonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, announcements books or communications relating records of the Company or any of its Subsidiaries to, or any Person who the making of any submission, proposal or offer that constitutes, or that would Company should reasonably be expected to lead toknow is considering making, an Acquisition Proposal; (ii) enter intoor has made, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take (iii) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other action regarding any inquiryPerson, expression in each case, for the primary purpose of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept making any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written requiring it to abandon, terminate or oral) providing for fail to consummate the consummation of Offer, the Merger or any other transaction contemplated by this Agreement. The Company will notify Parent promptly after receipt by the Company (or any Acquisition Proposal or otherwise relating to of its advisors) of any Acquisition Proposal; or (v) submit any Acquisition Proposal , or any matter related thereto request for nonpublic information relating to the vote Company or any of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect its Subsidiaries or for access to the Parent properties, books or Purchaser other than where records of the underlying transaction is Company or any of its Subsidiaries by any Person who the Company should reasonably be expected to be know is considering making, or has made, an alternative transaction to the Transactions), Acquisition Proposal. The Company shall, and shall cause each its Subsidiaries and the directors, officers and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any all discussions and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, prior to the acceptance for payment by Merger Subsidiary of the Shares tendered in the Offer the Company may, if it gives Parent notice of its intention to do so, negotiate or otherwise engage in substantive discussions with, and shall promptly (and in furnish nonpublic information to, any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: Person who delivers an unsolicited Superior Proposal if (i) a written description the Company has complied with the terms of any expression of interestthis Section 7.04, inquiryincluding, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Personwithout limitation, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representatives.requirement
Appears in 1 contract
No Solicitation; Other Offers. From (a) After the date of this Agreement until hereof and prior to the earlier of the respective Closing Date or the earlier termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation Sellers will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall the Sellers will cause each their Subsidiaries and Affiliates and the officers, directors, employees, investment bankers, attorneys, consultants and other agents and advisors of its respective Representatives the Sellers and their Subsidiaries and Affiliates not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to encourage, solicit, initiate, facilitate, support, seek, induceinitiate or knowingly facilitate the submission of any Acquisition Proposal or (ii) encourage or engage in discussions or negotiations with, or encourage disclose any inquiriesnonpublic information relating to the Targeted Businesses or afford access to the properties, announcements books or communications relating records of the Targeted Businesses or of the Sellers regarding the Target Assets to, or the making any Person (other than to Purchaser, its representatives and advisors) concerning an Acquisition Proposal. The Sellers will notify Purchaser as soon as reasonably practicable, but in any event, within forty-eight hours of any submissionAcquisition Proposal received by the Sellers or any of their Subsidiaries or any of their representatives, proposal Affiliates, employees, advisors, agents, officers or offer directors, any indication that constitutesany Person is considering making an Acquisition Proposal or any request for nonpublic information relating to the Targeted Businesses or for access to the properties, books or records of the Sellers or any of their Subsidiaries by any Person who is considering making, or that would reasonably be expected to lead tohas made, an Acquisition Proposal; (ii) enter into. The Sellers shall provide such notice orally and in writing and shall identify the Person making, participate in, maintain or continue any discussions or negotiations relating toand the terms and conditions of, any such Acquisition Proposal with Proposal, indication or request and shall also include, as and when received, copies of any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interestwritten offer, proposal or offer relating to an Acquisition Proposal or take materials received. The Sellers shall keep Purchaser fully informed, on a current basis, of the status and details of any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an such Acquisition Proposal; (iv) accept any Acquisition Proposal , indication or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation request. Upon execution of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Companythis Agreement, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), shall, Sellers shall and shall cause each of its their Subsidiaries, and their respective Representatives toofficers, directors, Affiliates, representatives, consultants and advisors to immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date execution of this Agreement with respect to any Acquisition Proposal and shall request (or if any of them has contractual rights to do so, demand) the return of all documents, analyses, financial statements, projections and other data and information previously furnished to others in connection with any potential Acquisition Proposal.
(b) Notwithstanding the foregoing, the Sellers may engage in discussions or negotiations with, and shall promptly (and furnish nonpublic information or access to, any Person in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: response to an unsolicited Acquisition Proposal by such Person received without violation of this Agreement if (i) the Sellers have complied with the terms of Section 5.2(a), (ii) the Board of Directors of Sylvan or the Special Committee of Sylvan, as appropriate, determines in good faith that such Acquisition Proposal would result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be deemed to constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Sellers than those contained in the Confidentiality Agreement and (iv) the Sellers shall have delivered to Purchaser three Business Days' prior written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received notice (the "Other Interested PartyFIRST NOTICE") advising Purchaser that it intends to take such action. Upon receipt of the First Notice, Purchaser will notify the Sellers as soon as reasonably practicable, but in any event, within three Business Days after receipt of such notice, of the Termination Fee (the "TERMINATION FEE NOTICE") it will elect in the event of termination of this Agreement on the basis of such Acquisition Proposal pursuant to Section 7.3(a)(x) or 7.3(a)(y); . If Purchaser elects the Termination Fee pursuant to Section 7.3(a)(y), it shall not be required to make the election provided in subparts (a) and (b) of that section at the time it provides the Termination Fee Notice, but shall be required to make such election no later than five Business Days after the Purchaser's receipt of the notice specified in Section 7.1(c)(iii)(C). The Sellers shall deliver no more than one First Notice with respect to a Person that has provided an Acquisition Proposal unless such Person provides a new Acquisition Proposal following a matching offer by Purchaser pursuant to Section 7.1(c)(ii)(D).
(c) Nothing contained in this Section 5.2 or any other provision of this Agreement shall prohibit the Sellers or any director, officer, agent or employee of the Sellers from (i) taking and disclosing to Sylvan's shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 and 14e-2 promulgated under the Exchange Act or (ii) a copy making such disclosure to Sylvan's shareholders as, in the good faith judgment of each written communication and a complete summary Sylvan's Board of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s RepresentativesDirectors after consultation with outside counsel, is required under applicable law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sylvan Learning Systems Inc)
No Solicitation; Other Offers. From (a) After the date of this Agreement until hereof and prior to the earlier of the respective Closing Date or the earlier termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation Sellers will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall the Sellers will cause each their Subsidiaries and Affiliates and the officers, directors, employees, investment bankers, attorneys, consultants and other agents and advisors of its respective Representatives the Sellers and their Subsidiaries and Affiliates not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to encourage, solicit, initiate, facilitate, support, seek, induceinitiate or knowingly facilitate the submission of any Acquisition Proposal or (ii) encourage or engage in discussions or negotiations with, or encourage disclose any inquiriesnonpublic information relating to the Targeted Businesses or afford access to the properties, announcements books or communications relating records of the Targeted Businesses or of the Sellers regarding the Target Assets to, or the making any Person (other than to Purchaser, its representatives and advisors) concerning an Acquisition Proposal. The Sellers will notify Purchaser as soon as reasonably practicable, but in any event, within forty-eight hours of any submissionAcquisition Proposal received by the Sellers or any of their Subsidiaries or any of their representatives, proposal Affiliates, employees, advisors, agents, officers or offer directors, any indication that constitutesany Person is considering making an Acquisition Proposal or any request for nonpublic information relating to the Targeted Businesses or for access to the properties, books or records of the Sellers or any of their Subsidiaries by any Person who is considering making, or that would reasonably be expected to lead tohas made, an Acquisition Proposal; (ii) enter into. The Sellers shall provide such notice orally and in writing and shall identify the Person making, participate in, maintain or continue any discussions or negotiations relating toand the terms and conditions of, any such Acquisition Proposal with Proposal, indication or request and shall also include, as and when received, copies of any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interestwritten offer, proposal or offer relating to an Acquisition Proposal or take materials received. The Sellers shall keep Purchaser fully informed, on a current basis, of the status and details of any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an such Acquisition Proposal; (iv) accept any Acquisition Proposal , indication or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation request. Upon execution of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Companythis Agreement, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), shall, Sellers shall and shall cause each of its their Subsidiaries, and their respective Representatives toofficers, directors, Affiliates, representatives, consultants and advisors to immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date execution of this Agreement with respect to any Acquisition Proposal and shall request (or if any of them has contractual rights to do so, demand) the return of all documents, analyses, financial statements, projections and other data and information previously furnished to others in connection with any potential Acquisition Proposal.
(b) Notwithstanding the foregoing, the Sellers may engage in discussions or negotiations with, and shall promptly (and furnish nonpublic information or access to, any Person in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: response to an unsolicited Acquisition Proposal by such Person received without violation of this Agreement if (i) a written description the Sellers have complied with the terms of any expression of interestSection 5.2(a), inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) the Board of Directors of Sylvan or the Special Committee of Sylvan, as appropriate, determines in good faith that such Acquisition Proposal would result in a copy Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be deemed to constitute a breach of each its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Sellers than those contained in the Confidentiality Agreement and (iv) the Sellers shall have delivered to Purchaser three Business Days’ prior written communication and a complete summary of each other communication transmitted on behalf notice (the “First Notice”) advising Purchaser that it intends to take such action. Upon receipt of the Other Interested Party First Notice, Purchaser will notify the Sellers as soon as reasonably practicable, but in any event, within three Business Days after receipt of such notice, of Table of Contents the Termination Fee (the “Termination Fee Notice”) it will elect in the event of termination of this Agreement on the basis of such Acquisition Proposal pursuant to Section 7.3(a)(x) or 7.3(a)(y). If Purchaser elects the Termination Fee pursuant to Section 7.3(a)(y), it shall not be required to make the election provided in subparts (a) and (b) of that section at the time it provides the Termination Fee Notice, but shall be required to make such election no later than five Business Days after the Purchaser’s receipt of the notice specified in Section 7.1(c)(iii)(C). The Sellers shall deliver no more than one First Notice with respect to a Person that has provided an Acquisition Proposal unless such Person provides a new Acquisition Proposal following a matching offer by Purchaser pursuant to Section 7.1(c)(ii)(D).
(c) Nothing contained in this Section 5.2 or any other provision of this Agreement shall prohibit the Sellers or any director, officer, agent or employee of the Other Interested PartySellers from (i) taking and disclosing to Sylvan’s Representatives shareholders a position with respect to any a tender or exchange offer by a third party pursuant to Rule 14d-9 and 14e-2 promulgated under the Exchange Act or (ii) making such disclosure to Sylvan’s shareholders as, in the good faith judgment of them or transmitted on behalf Sylvan’s Board of any of them to the Other Interested Party or any of the Other Interested Party’s RepresentativesDirectors after consultation with outside counsel, is required under applicable law.
Appears in 1 contract
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Companyhereof, the Purchaser and Parent (provided that such limitation Company will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall will cause each its Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its respective Representatives Subsidiaries not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitatefacilitate or encourage the submission of any Acquisition Proposal, support(ii) except as permitted in Section 7.4(b), seek, induceengage in discussions or negotiations with, or encourage disclose any inquiriesnonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, announcements books or communications relating records of the Company or any of its Subsidiaries to, any Person who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal or any inquiries or the making of any submission, proposal or offer that constitutes, or that would may reasonably be expected to lead to, an any Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company. The Company will notify Parent or Parent's outside legal counsel promptly (but in no event later than 36 hours) after receipt by, or communication to, the Company of any Acquisition Proposal, any indication that any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to considering making an Acquisition Proposal or take any other action regarding request for nonpublic information relating to the Company or any inquiryof its Subsidiaries or for access to the properties, expression books or records of interest, proposal the Company or offer that constitutesany of its Subsidiaries by any Person who the Company has reason to believe may be considering making, or would reasonably be expected to lead tohas made, an Acquisition Proposal; (iv) accept . The Company shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal Proposal, indication or enter into any agreementrequest. The Company shall keep Parent fully informed, arrangement or understanding (whether written or oral) providing for the consummation on a current basis, of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto material changes to the vote of their shareholdersterms thereof. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), The Company shall, and shall cause each its Subsidiaries and the directors, employees and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, the Company may negotiate or otherwise engage in substantive discussions with, and shall promptly (and in furnish nonpublic information to, any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: Person who delivers a Superior Proposal if (i) a written description the Company has complied with the terms of this Section 7.4, including, without limitation, the requirement in Section 7.4(a) that it notify Parent promptly after its receipt of any expression Acquisition Proposal, (ii) the Board of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity Directors of the Company determines in good faith by a majority vote, on the basis of advice from its outside legal counsel, that consistent with its fiduciary duties under applicable law, it must take such action, (iii) such Person from which executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement, (iv) the Company shall have delivered to Parent four business days' prior written notice advising Parent that it intends to take such expression action and (v) the Offer shall not have closed.
(c) The Board of interestDirectors of the Company shall be permitted to withdraw, inquiryor modify in a manner adverse to Parent, proposal or offer was received its approval and recommendation to its shareholders referred to in Sections 2.2 and 7.2 hereof, but only if (i) the "Other Interested Party"); and Company has complied with the terms of this Section 7.4, including, without limitation, the requirement in Section 7.4(a) that it notify Parent promptly after its receipt of any Acquisition Proposal, (ii) a copy Superior Proposal is pending at the time the Company's Board of each written communication and Directors determines to take any such action, (iii) the Company's Board of Directors determines in good faith by a complete summary of each other communication transmitted majority vote, on behalf the basis of the Other Interested Party advice of its outside legal counsel, that consistent with its fiduciary duties under applicable law, it must take such action and (iv) the Company shall have delivered to Parent four business days' prior written notice advising Parent that it intends to take such action. For purposes of this Agreement, "Superior Proposal" means any bona fide, unsolicited written Acquisition Proposal for 50% or any more of the Other Interested Party’s Representatives to any outstanding Shares on terms that the Board of them or transmitted on behalf Directors of any of them the Company determines in good faith by a majority vote is more favorable and provides greater value to the Other Interested Party or any Company's shareholders than as provided hereunder, and such decision is made on the basis of the Other Interested Party’s Representativesadvice of a financial advisor of nationally recognized reputation and takes into account all the terms and conditions of the Acquisition Proposal, including any break-up fees, expense reimbursement provisions and conditions to closing. Nothing in this Section 7.4(c) shall (i) permit the Company to terminate this Agreement (except as provided in Article 11 hereof) or (ii) affect any other obligations of the Company under this Agreement.
Appears in 1 contract
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Companyhereof, the Purchaser and Parent (provided that such limitation Company will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall will cause each its Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its respective Representatives Subsidiaries not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitatefacilitate or encourage the submission of any Acquisition Proposal, support, seek, induce(ii) engage in discussions or negotiations with, or encourage disclose any inquiriesnonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, announcements books or communications relating records of the Company or any of its Subsidiaries to, or any Person who the making of any submission, proposal or offer that constitutesCompany has reason to believe may be considering making, or that would reasonably be expected to lead tohas made, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish grant any waiver or release under any standstill or similar agreement with respect to any Person other than to each other class of equity securities of the Company. The Company will notify Parent promptly after receipt by the Company (or any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression its advisors) of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto request for nonpublic information relating to the vote Company or any of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect its Subsidiaries or for access to the Parent properties, books or Purchaser other than where records of the underlying transaction is reasonably expected Company or any of its Subsidiaries by any Person who the Company has reason to believe may be considering making, or has made, an alternative transaction to the Transactions), Acquisition Proposal. The Company shall, and shall cause each its Subsidiaries and the directors, employees and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, the Company may negotiate or otherwise engage in substantive discussions with, and shall promptly (and in furnish nonpublic information to, any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: Person who delivers a written Acquisition Proposal if (i) a two (2) business days prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company provides written description notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person, which notice shall identify such Person in reasonable detail, (ii) the Company keeps Parent reasonably informed of the status of any expression such discussion or negotiations, (iii) the Board of interestDirectors of the Company determines in good faith by a majority vote, inquiryon the basis of advice from its outside legal counsel, proposal that, consistent with its fiduciary duties under applicable law, it must take such action, (iv) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement, (v) such Acquisition Proposal is reasonably expected to be all cash and not explicitly subject to any financing contingency, and that in the event that such Acquisition Proposal is in the form of a tender offer or exchange offer, such tender offer relating or exchange offer is for 50% or more of the outstanding Shares, and (vi) the Board of Directors has concluded in good faith that the Person making such Acquisition Proposal is reasonably expected to have adequate sources of financing to consummate such Acquisition Proposal and is reasonably expected not to encounter significant regulatory obstacles to consummating the Transactions on a possible Acquisition Transaction that is timely basis. Parent will not disclose any information received by them from the Company pursuant to this Section 7.04 to any other Person, except for disclosures to Parent's financial, legal and other advisors or Persons considering providing financing to Parent in connection with the Transactions, including the Offer and the Merger, and except for such disclosures required in such description order that Parent not be in violation of or default under any applicable law, regulation or governmental order. Nothing in this Section 7.04(b) shall (x) permit the identity Company to terminate this Agreement (except as specifically provided in Section 11.01), (y) permit the Company to enter into any written agreement with respect to an Acquisition Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, the Company shall not enter into any written agreement with any Person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of the Person from which such expression Company under this Agreement.
(c) The Board of interestDirectors of the Company shall be permitted to withdraw, inquiryor modify in a manner adverse to Parent, proposal or offer was received its recommendation to its stockholders referred to in Sections 2.01 and 7.02 hereof, but only if (i) the "Other Interested Party"Company has complied with the terms of this Section 7.04, including, without limitation, the requirements in clauses (i); , (ii) and (iv) of Section 7.04(b) and the requirement in Section 7.04(a) that it notify Parent promptly after its receipt of any Acquisition Proposal, (ii) a copy Superior Proposal consistent with the conditions of each written communication clauses (v) and (vi) of Section 7.04(b) is pending at the time the Board of Directors determines to take any such action, and (iii) the Board of Directors determines in good faith by a complete summary of each other communication transmitted majority vote, on behalf the basis of the Other Interested Party or any advice of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representativesits outside legal counsel, that, consistent with its fiduciary duties under applicable law, it must take such action.
Appears in 1 contract
Samples: Merger Agreement (Inamed Corp)
No Solicitation; Other Offers. From the date of this Agreement until Until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Seller shall not, and shall cause each of its respective Subsidiaries and Representatives not to, directly or indirectly: , (ia) solicit, initiate, facilitate, support, seek, induce, entertain initiate or knowingly encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, initiate or knowingly encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (iib) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; Purchaser, (iiic) furnish to any Person other than to each other Purchaser any information that is Seller believes or should reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; Proposal or (ivd) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), Seller shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. Until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Seller shall, and shall cause each of its Representatives to, promptly (and in any event within 24 hoursevent, no later than one Business Day following receipt of an Acquisition Proposal) provide notify Purchaser or the Shareholders Representatives, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is Proposal received by them from any PersonSeller or its Subsidiaries and Representatives after the Execution Date, including in such description the identity which notice shall include a summary of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf material terms of any of them to the Other Interested Party such Acquisition Proposal, whether conveyed verbally or any of the Other Interested Party’s Representativesin writing.
Appears in 1 contract
No Solicitation; Other Offers. From (a) During the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each CompanyInterim Period, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Company shall not, and shall cause each of its Representatives and each of the other Acquired Companies (and each of their respective Representatives Representatives) not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, entertain or encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; Parent, (iii) furnish to any Person other than to each other Parent any information that is the Company believes or should reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; , (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or , (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each the stockholders of the Company, the Purchaser and the Parent (provided that such limitation will not apply vi) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Parent Company or Purchaser any of the other than where Acquired Companies or (vii) resolve, propose or agree to do any of the underlying transaction is reasonably expected foregoing. From and following the date of this Agreement, the Company further agrees not to, and to be an alternative transaction to cause each other Acquired Company not to, release any Persons described in the Transactions), preceding sentence from any obligations under such non-disclosure or similar agreements without the prior written consent of Parent.
(b) The Company shall, and shall cause each of its Representatives and each of the other Acquired Companies (and each of their respective Representatives Representatives) to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. During the Interim Period, and in the event any Acquired Company or any Representative of any Acquired Company receives an Acquisition Proposal, the Company shall promptly (and in any event within 24 hourshours from the receipt thereof) provide Purchaser or notify Parent of such event; provided, however, that such notice may be limited to notice of the Shareholders Representatives, as applicable, with: (i) a written description receipt of any expression of interest, inquiry, proposal or offer relating an Acquisition Proposal and in no event shall the Company be required to a possible Acquisition Transaction that is received by them from any Person, including in such description disclose the identity of any person making such Acquisition Proposal. Notwithstanding the Person foregoing, in no event shall the Company be obligated to disclose any material terms of an Acquisition Proposal to the extent restricted from which such expression doing so by an existing contractual obligation, and no notice shall be required in the event that any potential financial non-strategic investor contacts the Company, any of interestits subsidiaries, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s its or their respective Representatives seeking to acquire any of them or transmitted on behalf of any of them to the Other Interested Party or any equity interests of the Other Interested Party’s RepresentativesCompany where such proposed transaction would not reasonably be expected to constitute a sale, directly or indirectly of greater than fifteen percent (15%) of the equity interests of the Company in connection with a bona fide equity financing of the Company. Promptly following the execution of this Agreement, the Company shall deliver written notices to request the return or destruction of all confidential information to all Persons (except for Parent and current stockholders of the Company) with such return or destroy obligations under non-disclosure or similar agreements (except for such non-disclosure or similar agreements that do not relate to a potential Acquisition Proposal, financing of the Company or similar transaction).
Appears in 1 contract
Samples: Merger Agreement (Okta, Inc.)
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier acceptance for payment by Merger Subsidiary of the respective Closing Date Shares tendered into the Offer or the earlier termination of this Agreement in accordance with its terms, each Selling Shareholder, each Companyhereof, the Purchaser and Parent (provided that such limitation Company will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall will cause each its Subsidiaries and the officers, directors, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its respective Representatives Subsidiaries not to, directly or indirectly: to (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action (y) to solicitsolicit or (z) for the primary purpose of initiating or encouraging the submission of any Acquisition Proposal, initiate, facilitate, support, seek, induce(ii) engage in substantive discussions or negotiations with, or encourage disclose any inquiriesmaterial nonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, announcements books or communications relating records of the Company or any of its Subsidiaries to, or any Person who the making of any submission, proposal or offer that constitutes, or that would Company should reasonably be expected to lead toknow is considering making, an Acquisition Proposal; (ii) enter intoor has made, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take (iii) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other action regarding any inquiryPerson, expression in each case, for the primary purpose of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept making any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written requiring it to abandon, terminate or oral) providing for fail to consummate the consummation of Offer, the Merger or any other transaction contemplated by this Agreement. The Company will notify Parent promptly after receipt by the 32 Company (or any Acquisition Proposal or otherwise relating to of its advisors) of any Acquisition Proposal; or (v) submit any Acquisition Proposal , or any matter related thereto request for nonpublic information relating to the vote Company or any of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect its Subsidiaries or for access to the Parent properties, books or Purchaser other than where records of the underlying transaction is Company or any of its Subsidiaries by any Person who the Company should reasonably be expected to be know is considering making, or has made, an alternative transaction to the Transactions), Acquisition Proposal. The Company shall, and shall cause each its Subsidiaries and the directors, officers and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any all discussions and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, prior to the acceptance for payment by Merger Subsidiary of the Shares tendered in the Offer the Company may, if it gives Parent notice of its intention to do so, negotiate or otherwise engage in substantive discussions with, and shall promptly (and in furnish nonpublic information to, any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: Person who delivers an unsolicited Superior Proposal if (i) a written description the Company has complied with the terms of this Section 7.04, including, without limitation, the requirement in Section 7.04(a) that it notify Parent promptly after its receipt of any expression of interestAcquisition Proposal, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy the Board of each written communication and a complete summary of each other communication transmitted on behalf Directors of the Other Interested Party or any Company determines in its good faith, reasonable judgment, after consultation with and the receipt of advice from its financial advisor and outside counsel, that failure to take such action could create a reasonable possibility of a breach of the Other Interested Party’s Representatives to any fiduciary duties of them or transmitted on behalf the Board of any of them Directors under applicable law, and (iii) such Person executes a confidentiality agreement with the Company not more favorable to the Other Interested Party or recipient of such information than the Confidentiality Agreement. For purposes of this Agreement, "Superior Proposal" means any bona fide, unsolicited written Acquisition Proposal for at least a majority of the Other Interested Party’s Representativesoutstanding Shares on terms that the Board of Directors of the Company determines in good faith by a majority vote, on the basis of the advice of a financial advisor of nationally recognized reputation and taking into account all the terms and conditions of the Acquisition Proposal, including any break-up fees, expense reimbursement provisions and conditions to consummation, (A) is more favorable to all the Company's stockholders than as provided hereunder, (B) is reasonably capable of obtaining any required financing and (C) is reasonably capable of being completed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gibson Greetings Inc)
No Solicitation; Other Offers. From (a) During the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each CompanyInterim Period, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Company shall not, and shall cause each of its Representatives and each of the other Acquired Companies (and each of their respective Representatives Representatives) not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain knowingly induce or encourage, engage or take any action to solicit, initiate, facilitate, support, seek, induce, knowingly induce or encourage engage in any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; Parent, (iii) furnish to any Person other than to each other Parent any information that is the Company believes or should reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; , (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or , (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each the stockholders of the Company, the Purchaser and the Parent (provided that such limitation will not apply vi) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Parent Company or Purchaser any of the other than where Acquired Companies or (vii) resolve, propose or agree to do any of the underlying transaction is reasonably expected foregoing. From and following the date of this Agreement, the Company further agrees not to, and to be an alternative transaction to cause each other Acquired Company not to, release any Persons described in the Transactions), preceding sentence from any obligations under such non-disclosure or similar agreements without the prior written consent of Parent.
(b) The Company shall, and shall cause each of its Representatives and each of the other Acquired Companies (and each of their respective Representatives Representatives) to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal, and shall promptly (and in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) Parent with a written description of any expression of interest, inquiry, proposal or offer relating to a possible |US-DOCS\123754940.16|| Acquisition Transaction Proposal, that is received by them any Acquired Company or any Representative of any Acquired Company from any PersonPerson (other than Parent), including in such description the identity of such Person (the Person from which “Other Interested Party”) and provide to Parent a copy of such expression of interest, inquiry, proposal or offer was received if available in writing.. Promptly following the execution of this Agreement, the Company shall deliver written notices to request the return or destruction of all confidential information to all Persons (the "Other Interested Party"); except for Parent and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf current stockholders of the Other Interested Party Company) with such return or any destroy obligations under non-disclosure or similar agreements (except for such non-disclosure or similar agreements that do not relate to a potential Acquisition Proposal, financing of the Other Interested Party’s Representatives to any of them Company or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representativessimilar transaction).
Appears in 1 contract
Samples: Merger Agreement (Skillz Inc.)
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall notEach Stockholder shall, and shall cause each of its respective Representatives not trustees, representatives, consultants, investment bankers, attorneys, accountants and other agents acting in its capacity as such (collectively, a person’s or entity’s “Representatives”) to, directly immediately cease any discussions, activities or indirectly: negotiations with any other Person or Persons (other than Parent and Parent’s representatives) that may be ongoing with respect to any Acquisition Proposal. Each Stockholder further agrees that it and its Representatives (to the extent they are serving as a Representative of a Stockholder) shall not (i) directly or indirectly solicit, initiate, facilitate, support, seek, induce, entertain knowingly encourage or encourage, or take knowingly facilitate any action to solicit, initiate, facilitate, support, seek, induce, or encourage any inquiries, announcements or communications relating to, inquiries or the making of any submissionAcquisition Proposal, (ii) directly or indirectly participate in any discussions or negotiations with, furnish any information relating to the Company or afford access to the business, properties, books, records, data or confidential information of the Company to any Third Party that is seeking to make, or has made an Acquisition Proposal, or take any other action to knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or that would may reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish recommend, adopt or approve, or propose publicly to recommend, adopt or approve, an Acquisition Proposal, or (iv) agree or publicly propose to do any Person other of the foregoing. Each Stockholder further agrees that it shall promptly notify Parent (but in no event later than to each other forty-eight hours) after receipt by such Stockholder (or any information of its Representatives) of any Acquisition Proposal, any inquiry that is could be reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating lead to an Acquisition Proposal or take of any other action regarding request for information relating to the Company by any inquiry, expression Third Party that to the knowledge of interest, proposal or offer that constitutesthe Stockholder may be considering making, or would reasonably be expected to lead to, has made an Acquisition Proposal; , which notice shall be provided in writing and shall identify the person making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request (iv) accept including any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation material changes thereto and copies of any transaction contemplated by written materials received from such Third Party or its Representatives in connection therewith). The Stockholders shall keep Parent fully informed of any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect material change to any Acquisition Proposal, inquiry or request for information. The Stockholders shall enforce, to the fullest extent permitted under applicable law, the provisions of any standstill, confidentiality or similar agreement entered into by the Stockholders or their respective Representatives, including where necessary, seeking to obtain injunctions to prevent any breaches of such agreements and shall promptly (to enforce specifically the terms and provisions thereof in any event within 24 hours) provide Purchaser or court having jurisdiction. Without limiting the Shareholders Representativesforegoing, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity Parent and each of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf Stockholders agree that any violation of the Other Interested Party or restrictions set forth in this Section 4 by any Representative of the Other Interested Party’s Representatives to any a Stockholder shall constitute a breach by such Stockholder of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representativesthis Section 4.
Appears in 1 contract
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Companyhereof, the Purchaser and Parent (provided that such limitation Company will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall will cause each its Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its respective Representatives Subsidiaries not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitatefacilitate or encourage the submission of any Acquisition Proposal, support, seek, induce(ii) engage in discussions or negotiations with, or encourage disclose any inquiriesnonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, announcements books or communications relating records of the Company or any of its Subsidiaries to, or any Person who the making of any submission, proposal or offer that constitutesCompany has reason to believe may be considering making, or that would reasonably be expected to lead tohas made, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company. The Company will notify Parent promptly (but in no event later than 24 hours) after receipt by the Company (or any of its advisors) of any Acquisition Proposal, any indication that any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to considering making an Acquisition Proposal or take any other action regarding request for nonpublic information relating to the Company or any inquiryof its Subsidiaries or for access to the properties, expression books or records of interest, proposal the Company or offer that constitutesany of its Subsidiaries by any Person who the Company has reason to believe may be considering making, or would reasonably be expected to lead tohas made, an Acquisition Proposal; (iv) accept . The Company shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal Proposal, indication or enter into any agreementrequest. The Company shall keep Parent fully informed, arrangement or understanding (whether written or oral) providing for the consummation on a current basis, of any transaction contemplated by material changes in the status or details of any Acquisition Proposal or otherwise relating to any such Acquisition Proposal; , indication or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholdersrequest. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), The Company shall, and shall cause each its Subsidiaries and the directors, employees and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, the Company may negotiate or otherwise engage in substantive discussions with, and shall promptly (and in furnish nonpublic information to, any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: Person who delivers an Acquisition Proposal if (i) a written description the Company has complied with the terms of this Section 7.04, including, without limitation, the requirement in Section 7.04(a) that it notify Parent promptly after its receipt of any expression Acquisition Proposal, (ii) the Board of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity Directors of the Company determines in good faith by a majority vote, on the basis of advice from its outside legal counsel, that, consistent with its fiduciary duties under applicable law, it must take such action, (iii) such Person from which executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement, and (iv) the Company shall have delivered to Parent two business days' prior written notice advising Parent that it intends to take such expression action.
(c) The Board of interestDirectors of the Company shall be permitted to withdraw, inquiryor modify in a manner adverse to Parent, proposal or offer was received its recommendation to its shareholders referred to in Sections 2.02 and 7.02 hereof, but only if (i) the "Other Interested Party"); and Company has complied with the terms of this Section 7.04, including, without limitation, the requirement in Section 7.04(a) that it notify Parent promptly after its receipt of any Acquisition Proposal, (ii) a copy Superior Proposal is pending at the time the Board of each written communication and Directors determines to take any such action, (iii) the Board of Directors determines in good faith by a complete summary of each other communication transmitted majority vote, on behalf the basis of the Other Interested Party or advice of its outside legal counsel, that, consistent with its fiduciary duties under applicable law, it must take such action, and (iv) the Company shall have delivered to Parent two business days' prior written notice advising Parent that it intends to take such action. For purposes of this Agreement, "Superior Proposal" means any bona fide, unsolicited written Acquisition Proposal for all outstanding Shares on terms that the Board of Directors of the Other Interested Party’s Representatives Company determines in good faith by a majority vote is materially more favorable and provides materially greater value to any of them or transmitted all the Company's shareholders than as provided hereunder, and such decision is made on behalf of any of them to the Other Interested Party or any basis of the Other Interested Party’s Representativeswritten advice of a financial advisor of nationally recognized reputation and takes into account all the terms and conditions of the Acquisition Proposal, including any break-up fees, expense reimbursement provisions and conditions to closing.
Appears in 1 contract
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or Effective Time and the termination of this Agreement in accordance with its termsArticle 11, each Selling Shareholder, each Company, neither the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall cause each Company nor any of its respective Representatives not toSubsidiaries nor any of the officers, directors, employees, investment bankers, consultants or other agents of the Company and its Subsidiaries will, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, induce or take any action to solicitknowingly facilitate (including, initiate, facilitate, support, seek, induce, or encourage any inquiries, announcements or communications relating to, or without limitation by way of furnishing information) the making submission of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto inquiries with respect thereto, (ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the vote Company or any of their shareholders. Each Selling Shareholderits Subsidiaries to any Person who, each to the knowledge of the Company, is making or considering making, or who has made, an Acquisition Proposal. The Company will notify Parent as promptly as practicable (but in no event later than 24 hours) after receipt by the Purchaser Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making or considering making or who has made, an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent informed of the status and details (provided that including, without limitation, amendments or proposed amendments) of any such limitation will not apply with respect to the Parent Acquisition Proposal or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), request. The Company shall, and shall cause each its Subsidiaries and the directors, employees and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date hereof with respect to any Acquisition Proposal and, to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their Affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal.
(b) Notwithstanding the first sentence of Section 7.04(a), the Company may, until the earliest to occur of the Offer Completion Date, a purchase of Company Stock pursuant to the Option, and shall promptly the Company Stockholders Meeting (such earliest date the "CUTOFF DATE"), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: response to an unsolicited Acquisition Proposal by such Person if (i) a written description the Company has complied with the terms of any expression of interestthis Section 7.04, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy the Board of each written communication and a complete summary Directors of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representatives.the
Appears in 1 contract
Samples: Merger Agreement (Pulliam Myrta J)
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactionsa) The Company shall not, and shall cause each not permit any of its respective Representatives not Subsidiaries to, directly and shall use its best efforts to ensure that its officers, directors or indirectly: (i) employees, or any investment bankers, consultants or other agents retained by it or any of its Subsidiaries do not solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, or encourage any inquiries, announcements or communications relating to, or the making submission of any submission, proposal Acquisition Proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any engage in discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) or furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating with respect to an Acquisition Proposal or take knowingly facilitate any other action regarding any inquiry, expression of interest, proposal effort or offer that constitutes, or would reasonably be expected attempt to lead to, make an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for . The Company will notify Parent within 48 hours of receipt by the consummation Company of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto request for nonpublic information relating to the vote Company or any of their shareholders. Each Selling Shareholderits Subsidiaries by any Person who, each to the knowledge of the Company, is making or considering making or who has made, an Acquisition Proposal. The Company shall provide such notice orally and in writing including the Purchaser terms and the Parent (provided that conditions of any such limitation will not apply with respect to the Parent Acquisition Proposal or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), request. The Company shall, and shall cause each its Subsidiaries and the directors, employees and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition ProposalProposal and, to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company's shareholders if, in the good faith judgment of the majority of the disinterested members of the Board of Directors of the Company, failure to so disclose would be inconsistent with applicable law.
(b) Notwithstanding the first sentence of Section 6.05(a), the Company may negotiate or otherwise engage in substantive discussions with, and shall promptly (and furnish nonpublic information to, any Person in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: response to an unsolicited Acquisition Proposal by such Person if (i) a written description the Company has complied with the terms of any expression of interestthis Section 6.05, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf majority of the Other Interested Party or any Board of Directors of the Other Interested Party’s Representatives Company reasonably determines in good faith that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, and (iii) such Person executes a confidentiality agreement in substantially the form of the Confidentiality Agreement (including the standstill provisions).
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, or take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of the Offer and the Merger, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement related to any Acquisition Proposal. The Board of them or transmitted on behalf of any of them to the Other Interested Party or any Directors of the Other Interested Party’s RepresentativesCompany shall be permitted (i) not to recommend to its shareholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii) to withdraw, or modify in a manner adverse to Parent, its recommendation to its shareholders referred to in Section 1.02 hereof, (iii) approve or recommend any Superior Proposal or (iv) terminate this Agreement and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (w) the Company has complied with the terms of this Section 6.05, (x) the Company has received an Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (y) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action could reasonably be deemed to be inconsistent with its fiduciary duties under applicable law, and (z) no such action is taken earlier than the third full Business Day following Parent's receipt of written notice of the intention of the Company's Board of Directors to do so.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Block Drug Co Inc)
No Solicitation; Other Offers. (a) From the date of this Agreement until the earlier of the respective Closing Date or the termination execution of this Merger Agreement in accordance with its termsthrough the Effective Time, each Selling Shareholderor until such time, each Companyif any, as this Merger Agreement is terminated pursuant to Article IX, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Company shall not, and shall cause each not permit any of its respective Representatives not officers, directors, employees, attorneys, investment bankers, agents, representatives or Affiliates (collectively, "COMPANY REPRESENTATIVES") to, directly or indirectly: (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, initiate or encourage any inquiries, announcements inquiry or communications relating to, proposal or the making of any submission, inquiry or proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with from any Person (other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiryParent), expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding agreement with any Person (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the TransactionsParent), shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal, and shall promptly (and b) furnish to any Person (other than Parent) any information with respect to, or otherwise cooperate in any event within 24 hoursway with, any Acquisition Proposal (other than an Acquisition Proposal with Parent) provide Purchaser or (c) enter into, continue or otherwise participate in any discussions or negotiations regarding, or take any other action to facilitate any inquiries or the Shareholders Representatives, as applicable, with: (i) a written description making of any expression proposal that constitutes, or which may reasonably be expected to result in, any Acquisition Proposal (other than an Acquisition Proposal with Parent). The Company agrees to notify Parent immediately upon the occurrence of interest, any inquiry, proposal or offer request for information with respect to an Acquisition Proposal, or any request for nonpublic information relating to a possible the Company by any Person who, to the knowledge of the Company, is making or considering making or who has made an Acquisition Transaction Proposal, that is received by them from any Personcomes to the attention of the Company the terms thereof, including in such description including, without limitation, the identity of the Person from which making such expression inquiry or proposal.
(b) From the date of interestthe execution of this Merger Agreement through the Effective Time, inquiryor until such time, proposal if any, as this Merger Agreement is terminated pursuant to Article IX, the Board of Directors of the Company shall not, except in connection with the termination of this Merger Agreement pursuant to Section 9.1(a), (b), (c) or offer was received (e), (i) withdraw or modify in a manner adverse to Parent their approval or recommendation of this Merger Agreement, the "Other Interested Party"); and Merger or the Related Documents, or take any action having such effect, or (ii) a copy of each written communication and a complete summary of each approve or recommend any Acquisition Proposal (other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representativesthan an Acquisition Proposal with Parent).
Appears in 1 contract
Samples: Merger Agreement (On Assignment Inc)
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date Effective Time or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Company shall not, and shall cause each of its respective Representatives representatives not to, directly or indirectly: , (ia) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, support or take any action to solicit, initiate, facilitate, support, seek, induce, initiate or encourage support any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (iib) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; Parent, (iiic) furnish to any Person other than to each other Parent any information that is the Company believes or should reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; , (ivd) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; Proposal or (ve) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholdersthe stockholders of the Company. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), The Company shall, and shall cause each of its respective Representatives representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal, and shall promptly (and in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, Parent with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction Proposal, or any request for information that could reasonably be expected to be used for the purposes of formulating any inquiry, proposal or offer regarding a possible Acquisition Proposal, that is received by them the Company or any representatives of the Company from any PersonPerson (other than Parent), including in such description the identity of the Person from which such expression of interest, inquiry, proposal proposal, offer or offer request for information was received (the "“Other Interested Party")”) and the material financial terms of such expression of interest, inquiry, proposal, offer or request for information; and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives representatives to the Company or any representatives of them the Company or transmitted on behalf of the Company or any representatives of them the Company to the Other Interested Party or any of the Other Interested Party’s Representativesrepresentatives.
Appears in 1 contract
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Companyhereof, the Purchaser and Parent (provided that such limitation Company will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall will cause each its Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its respective Representatives Subsidiaries not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitatefacilitate or encourage the submission of any Acquisition Proposal, support(ii) except as permitted in Section 7.4(b), seek, induceengage in discussions or negotiations with, or encourage disclose any inquiriesnonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, announcements books or communications relating records of the Company or any of its Subsidiaries to, any Person who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal or any inquiries or the making of any submission, proposal or offer that constitutes, or that would may reasonably be expected to lead to, an any Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company. The Company will notify Parent or Parent's outside legal counsel promptly (but in no event later than 36 hours) after receipt by, or communication to, the Company of any Acquisition Proposal, any indication that any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to considering making an Acquisition Proposal or take any other action regarding request for nonpublic information relating to the Company or any inquiryof its Subsidiaries or for access to the properties, expression books or records of interest, proposal the Company or offer that constitutesany of its Subsidiaries by any Person who the Company has reason to believe may be considering making, or would reasonably be expected to lead tohas made, an Acquisition Proposal; (iv) accept . The Company shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal Proposal, indication or enter into any agreementrequest. The Company shall keep Parent fully informed, arrangement or understanding (whether written or oral) providing for the consummation on a current basis, of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto material changes to the vote of their shareholdersterms thereof. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), The Company shall, and shall cause each of its respective Representatives toSubsidiaries and the directors, immediately cease employees and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal, and shall promptly (and in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity other agents of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representatives.Company
Appears in 1 contract
No Solicitation; Other Offers. From (a) After the date of this Agreement until hereof and prior to the earlier of the respective Closing Date or the earlier termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation Sellers will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall the Sellers will cause each their Subsidiaries and Affiliates and the officers, directors, employees, investment bankers, attorneys, consultants and other agents and advisors of its respective Representatives the Sellers and their Subsidiaries and Affiliates not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to encourage, solicit, initiate, facilitate, support, seek, induceinitiate or knowingly facilitate the submission of any Acquisition Proposal or (ii) encourage or engage in discussions or negotiations with, or encourage disclose any inquiriesnonpublic information relating to the Targeted Businesses or afford access to the properties, announcements books or communications relating records of the Targeted Businesses or of the Sellers regarding the Target Assets to, or the making any Person (other than to Purchaser, its representatives and advisors) concerning an Acquisition Proposal. The Sellers will notify Purchaser as soon as reasonably practicable, but in any event, within forty-eight hours of any submissionAcquisition Proposal received by the Sellers or any of their Subsidiaries or any of their representatives, proposal Affiliates, employees, advisors, agents, officers or offer directors, any indication that constitutesany Person is considering making an Acquisition Proposal or any request for nonpublic information relating to the Targeted Businesses or for access to the properties, books or records of the Sellers or any of their Subsidiaries by any Person who is considering making, or that would reasonably be expected to lead tohas made, an Acquisition Proposal; (ii) enter into. The Sellers shall provide such notice orally and in writing and shall identify the Person making, participate in, maintain or continue any discussions or negotiations relating toand the terms and conditions of, any such Acquisition Proposal with Proposal, indication or request and shall also include, as and when received, copies of any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interestwritten offer, proposal or offer relating to an Acquisition Proposal or take materials received. The Sellers shall keep Purchaser fully informed, on a current basis, of the status and details of any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an such Acquisition Proposal; (iv) accept any Acquisition Proposal , indication or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation request. Upon execution of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Companythis Agreement, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), shall, Sellers shall and shall cause each of its their Subsidiaries, and their respective Representatives toofficers, directors, Affiliates, representatives, consultants and advisors to immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date execution of this Agreement with respect to any Acquisition Proposal and shall request (or if any of them has contractual rights to do so, demand) the return of all documents, analyses, financial statements, projections and other data and information previously furnished to others in connection with any potential Acquisition Proposal.
(b) Notwithstanding the foregoing, the Sellers may engage in discussions or negotiations with, and shall promptly (and furnish nonpublic information or access to, any Person in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: response to an unsolicited Acquisition Proposal by such Person received without violation of this Agreement if (i) the Sellers have complied with the terms of Section 5.2(a), (ii) the Board of Directors of Sylvan or the Special Committee of Sylvan, as appropriate, determines in good faith that such Acquisition Proposal would result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be deemed to constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Sellers than those contained in the Confidentiality Agreement and (iv) the Sellers shall have delivered to Purchaser three Business Days' prior written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received notice (the "Other Interested PartyFirst Notice") advising Purchaser that it intends to take such action. Upon receipt of the First Notice, Purchaser will notify the Sellers as soon as reasonably practicable, but in any event, within three Business Days after receipt of such notice, of the Termination Fee (the "Termination Fee Notice") it will elect in the event of termination of this Agreement on the basis of such Acquisition Proposal pursuant to Section 7.3(a)(x) or 7.3(a)(y); . If Purchaser elects the Termination Fee pursuant to Section 7.3(a)(y), it shall not be required to make the election provided in subparts (a) and (b) of that section at the time it provides the Termination Fee Notice, but shall be required to make such election no later than five Business Days after the Purchaser's receipt of the notice specified in Section 7.1(c)(iii)(C). The Sellers shall deliver no more than one First Notice with respect to a Person that has provided an Acquisition Proposal unless such Person provides a new Acquisition Proposal following a matching offer by Purchaser pursuant to Section 7.1(c)(ii)(D).
(c) Nothing contained in this Section 5.2 or any other provision of this Agreement shall prohibit the Sellers or any director, officer, agent or employee of the Sellers from (i) taking and disclosing to Sylvan's shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 and 14e-2 promulgated under the Exchange Act or (ii) a copy making such disclosure to Sylvan's shareholders as, in the good faith judgment of each written communication and a complete summary Sylvan's Board of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s RepresentativesDirectors after consultation with outside counsel, is required under applicable law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Apollo Investment Fund Iv Lp)
No Solicitation; Other Offers. From the date of this Agreement until Until the earlier of the respective Closing Date Effective Time or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall notno Company Group Member shall, and each shall cause each of its respective Representatives not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain initiate or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, initiate or encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; Parent, (iii) furnish to any Person other than to each other Parent any information that is any Company Group Member believes or should reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; Proposal or (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), Company Group Member shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. The Company shall, and shall promptly within two business (and in 2) days after receipt, advise Parent of (A) any event within 24 hours) provide Purchaser formal or the Shareholders Representativesinformal inquiry, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible an Acquisition Transaction that is received by them from any PersonProposal, including in such description (B) the material terms thereto and (C) the identity of the Person from which or group making such inquiry, expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representativesoffer.
Appears in 1 contract
Samples: Merger Agreement (NCR Corp)
No Solicitation; Other Offers. From the date of (a) Nothing contained in this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the TransactionsSection 4.7(a) shall notprevent the Board of Directors of Company or Special Committee from considering, and shall cause each of its respective Representatives not to, directly or indirectly: (i) solicit, initiate, facilitate, support, seek, induce, entertain or encouragediscussing, or take providing any action nonpublic information to solicit, initiate, facilitate, support, seek, induce, or encourage any inquiries, announcements or communications Person relating to, an bona fide inquiry or proposal regarding any merger, sale of substantial assets, sale of share of capital stock (including without limitation by way of a tender offer) or similar transactions involving Company or any Subsidiaries of Company other than the Merger (any such inquiry or proposal being referred to herein as an "Acquisition Proposal") not solicited in violation of this Agreement, provided the Board of Directors of Company or the making Special Committee, as the case may be, determines in good faith (upon consultation of any submission, proposal outside counsel) that it is required to do so in order to discharge properly its fiduciary duties. Nothing contained in this Section shall prohibit the Board of Directors of Company or offer that constitutes, the Special Committee from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or that would reasonably be expected to lead to, an Acquisition Proposal; exchange offer.
(iib) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes Company shall immediately notify Rocket and Acquiror after receipt of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal , or any matter related thereto to the vote modification of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect amendments to any Acquisition Proposal, and shall promptly (and in or any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer request for nonpublic information relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the Other Interested Party’s Representatives properties, books or records of Company or any Subsidiary of Company by any Person or entity that informs the Board of Directors of Company or the Special Committee or such Subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Rocket and Acquiror shall be made orally and in writing, and shall indicate whether Company is providing or intends to provide the Person making the Acquisition Proposal with access to information concerning Company as provided in Section 4.7(c).
(c) If the Board of Directors of Company or the Special Committee receives a request for material nonpublic information by a Person who makes, or indicates that it is considering making, an Acquisition Proposal, and the Board of Directors or the Special Committee, as the case may be, determines in good faith after consultation with outside counsel that it would be in the best interests of Company and its stockholders to provide such information, then, provided such Person has executed an appropriate confidentiality agreement, Company may provide such Person with access to information regarding Company. Company agrees not to release any of them or transmitted on behalf third party from the confidentiality and standstill provisions of any confidentiality agreement to which Company is a party.
(d) Company shall use its commercially reasonable efforts to inform the officers, directors and employees of them to the Other Interested Party Company and its Subsidiaries and any outside counsel, financial advisor, investment banker or any other advisor or representative retained by Company of the Other Interested Party’s Representativesrestrictions described in this Section.
Appears in 1 contract
No Solicitation; Other Offers. From and after the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Seller shall not, and shall cause each of its representatives, the Company and the Company Subsidiaries (and each of their respective Representatives representatives) not to, directly or indirectly: , (i) solicit, initiate, knowingly facilitate, knowingly support, seek, induce, entertain or knowingly encourage, or take any action to solicit, initiate, knowingly facilitate, knowingly support, seek, induce, entertain or knowingly encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; the Buyer, (iii) furnish to any Person other than to each other the Buyer any information that is reasonably expected to the Seller believes would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; , (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; Proposal or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Companythe equityholders of the Seller, the Purchaser and Company or the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), Company Subsidiaries. The Seller shall, and shall cause each of its representatives and each of the Company and the Company Subsidiaries (and each of their respective Representatives representatives) to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal, and shall promptly (and in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representatives.
Appears in 1 contract
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Companyhereof, the Purchaser and Parent (provided that such limitation Company will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall not, and shall will cause each its Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its respective Representatives Subsidiaries not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitatefacilitate or encourage the submission of any Acquisition Proposal, support, seek, induce(ii) engage in discussions or negotiations with, or encourage disclose any inquiriesnonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, announcements books or communications relating records of the Company or any of its Subsidiaries to, any Person who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal or any inquiries or the making of any submission, proposal or offer that constitutes, or that would may reasonably be expected to lead to, an any Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company. The Company will notify Parent or Parent's outside legal counsel promptly (but in no event later than 36 hours) after receipt by the Company (or any of its advisors) of any Acquisition Proposal, any indication that any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to considering making an Acquisition Proposal or take any other action regarding request for nonpublic information relating to the Company or any inquiryof its Subsidiaries or for access to the properties, expression books or records of interest, proposal the Company or offer that constitutesany of its Subsidiaries by any Person who the Company has reason to believe may be considering making, or would reasonably be expected to lead tohas made, an Acquisition Proposal; (iv) accept . The Company shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal Proposal, indication or enter into any agreementrequest. The Company shall keep Parent fully informed, arrangement or understanding (whether written or oral) providing for on a current basis, of the consummation status and details of any transaction contemplated by any Acquisition Proposal or otherwise relating to any such Acquisition Proposal; , indication or request (v) submit including, without limitation, any Acquisition Proposal or any matter related thereto material changes to the vote of their shareholdersterms thereof). Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), The Company shall, and shall cause each its Subsidiaries and the directors, employees and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, the Company may negotiate or otherwise engage in substantive discussions with, and shall promptly (and in furnish nonpublic information to, any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: Person who delivers a Superior Proposal if (i) a written description the Company has complied with the terms of this Section 7.04, including, without limitation, the requirement in Section 7.04(a) that it notify Parent promptly after its receipt of any expression Acquisition Proposal, (ii) the Board of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity Directors of the Company determines in good faith by a majority vote, on the basis of advice from its outside legal counsel, that consistent with its fiduciary duties under applicable law, it must take such action, (iii) such Person from which executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement, (iv) the Company shall have delivered to Parent four business days' prior written notice advising Parent that it intends to take such expression action and (v) the Offer shall not have closed.
(c) The Board of interestDirectors of the Company shall be permitted to withdraw, inquiryor modify in a manner adverse to Parent, proposal or offer was received its approval and recommendation to its shareholders referred to in Sections 2.02 and 7.02 hereof, but only if (i) the "Other Interested Party"); and Company has complied with the terms of this Section 7.04, including, without limitation, the requirement in Section 7.04(a) that it notify Parent promptly after its receipt of any Acquisition Proposal, (ii) a copy Superior Proposal is pending at the time the Company's Board of each written communication and Directors determines to take any such action, (iii) the Company's Board of Directors determines in good faith by a complete summary of each other communication transmitted majority vote, on behalf the basis of the Other Interested Party advice of its outside legal counsel, that consistent with its fiduciary duties under applicable law, it must take such action and (iv) the Company shall have delivered to Parent four business days' prior written notice advising Parent that it intends to take such action. For purposes of this Agreement, "Superior Proposal" means any bona fide, unsolicited written Acquisition Proposal for 50% or any more of the Other Interested Party’s Representatives to any outstanding Shares on terms that the Board of them or transmitted on behalf Directors of any of them the Company determines in good faith by a majority vote is more favorable and provides greater value to the Other Interested Party or any Company's shareholders than as provided hereunder, and such decision is made on the basis of the Other Interested Party’s Representativesadvice of a financial advisor of nationally recognized reputation and takes into account all the terms and conditions of the Acquisition Proposal, including any break-up fees, expense reimbursement provisions and conditions to closing. Nothing in this Section 7.04(c) shall (i) permit the Company to terminate this Agreement (except as provided in Article 11 hereof) or (ii) affect any other obligations of the Company under this Agreement.
Appears in 1 contract
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) The Company shall not, and shall cause each not permit any of its respective Representatives not Subsidiaries to, directly and shall use its best efforts to ensure that its officers, directors or indirectly: (i) employees, or any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it or any of its Subsidiaries do not, solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, or encourage any inquiries, announcements or communications relating to, or the making submission of any submission, proposal Acquisition Proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any engage in discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) or furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating with respect to an Acquisition Proposal or take knowingly facilitate any other action regarding any inquiry, expression of interest, proposal effort or offer that constitutes, or would reasonably be expected attempt to lead to, make an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), The Company shall, and shall cause each its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal and, to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company's stockholders if, in the good faith judgment of the majority of the members of the Board of Directors of the Company, after consultation with and advice from outside legal counsel, failure to so disclose would reasonably be deemed to constitute a breach of the fiduciary duties of the Board of Directors under applicable Law. Notwithstanding the first sentence of Section 6.05(a), until the receipt of the Required Vote (as hereinafter defined), the Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) a majority of the Board of Directors of the Company determines in good faith, after receiving the advice of a nationally recognized financial advisor, that such Acquisition Proposal would reasonably be expected to result in a Superior Proposal and, after consultation with and advice from outside legal counsel, that the failure to take such action would reasonably be deemed to constitute a breach of its fiduciary duties under applicable Law, and (ii) such Person executes a confidentiality agreement in a form no less favorable to the Company than the Confidentiality Agreement (including the standstill provisions). Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal by such person, the Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on a prompt basis of the status of any discussions or negotiations with such a third party, and any material changes to the terms and conditions of such Acquisition Proposal, and shall promptly (give Parent a copy of any information delivered to such person which has not previously been reviewed by Parent. Except as permitted by the second sentence of this Section 6.05(d), neither the Board of Directors of the Company nor any committee thereof shall, withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereof, or take any action not explicitly permitted by this Agreement that would be inconsistent with, its approval of the Offer and the Merger, approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any event within 24 hours) provide Purchaser or Acquisition Proposal. Notwithstanding the Shareholders Representativesforegoing, as applicableuntil receipt of the Required Vote, with: the Board of Directors of the Company shall be permitted (i) a written description of any expression of interest, inquiry, proposal or offer relating not to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity recommend to its stockholders acceptance of the Person from which such expression Offer and/or approval and adoption of interestthis Agreement and the Merger, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) to withdraw, or modify in a copy manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereof, (iii) to approve or recommend any Superior Proposal or (iv) to terminate this Agreement in accordance with Section 8.01(c)(ii) hereof and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (y) the Company has received an Acquisition Proposal which the Board of each written communication Directors determines in good faith, after receiving the advice of a nationally recognized financial advisor, constitutes a Superior Proposal and a complete summary (z) the Board of each other communication transmitted on behalf Directors of the Other Interested Party or any Company determines in good faith, after consultation with and advice from outside legal counsel, that the failure to take such action could reasonably be deemed to constitute a breach of its fiduciary duties under applicable Law. For purposes of this Section 6.05, the parties agree that the scope of the Other Interested Party’s Representatives fiduciary duty of the Board of Directors of the Company shall not be deemed to any be limited or constrained by virtue of them or transmitted on behalf the fact that certain stockholders of any of them the Company have agreed in the Voting and Tender Agreement to tender their shares to the Other Interested Party or any Purchaser and to vote in favor of the Other Interested Party’s Representatives.Merger, and in considering whether its failure to take any action specified above would reasonably be deemed to be a breach of its fiduciary duties to the stockholders of the Company under applicable Law, the Board of Directors shall be entitled to assume that the Voting and Tender Agreement has been terminated. For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, (a) each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Seller shall not, and shall cause each of its respective Representatives not to, and (b) the Company shall not, and shall cause each of its Representatives not to, directly or indirectly: (i) solicit, initiate, facilitate, support, seek, respond, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, respond, induce, or encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition ProposalProposal that may involve the Purchased Shares; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, to any Acquisition Proposal that may involve the Purchased Shares with any Person other than each otherthe Purchaser; (iii) furnish to any Person other than to each other the Purchaser any information that is the Company or such Seller believes or should reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal that may involve the Purchased Shares or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition ProposalProposal that may involve the Purchased Shares; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholdersthe shareholders of the Company. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), Seller shall, and shall cause each of its respective Representatives to, and the Company shall, and shall cause each of its Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition ProposalProposal that may involve the Purchased Shares, and shall promptly (and in any event within 24 hours) provide the Purchaser or the Shareholders Representatives, as applicable, with: (ix) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them the Company or such Seller or by any Representative of the Company or such Seller from any PersonPerson (other than the Purchaser), including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "“Other Interested Party"”); and (iiy) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to the Company or any Seller or any Representative of them the Company or Seller or transmitted on behalf of the Company or Seller or any Representative of them the Company or Seller to the Other Interested Party or any of the Other Interested Party’s Representatives. Furthermore, the parties agree that each of the Sellers shall be obligated, and subject to, Sections 3 (Right of First Offer), 7 (Effect of Failure to Comply), 11 (Miscellaneous) all of the provisions of the Shareholders Agreement, and the Purchaser shall have all the rights provided to it under the Shareholder Agreement, in each case, as if such Shareholder Agreement was executed and in full force and effect, as of the date hereof, and Purchaser shall be deemed to own, for the purpose of such obligations and rights, all of the Purchased Shares.
Appears in 1 contract
No Solicitation; Other Offers. (a) From the date of this Agreement hereof until the earlier of the respective Closing Date or Effective Time and the termination of this Agreement in accordance with its terms, each Selling Shareholder, each CompanyArticle 8, the Purchaser Company and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) its Subsidiaries shall not, nor shall they permit any of their Affiliates to, nor shall they authorize any of the officers, directors, employees, investment bankers, consultants and shall cause each other agents and Affiliates of the Company and its respective Representatives not Subsidiaries to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, induce or take any action to solicit, initiate, facilitate, support, seek, induce, or encourage any inquiries, announcements or communications relating to, or knowingly facilitate (including by way of furnishing information) the making submission of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto inquiries with respect thereto, (ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the vote Company or any of their shareholders. Each Selling Shareholderits Subsidiaries to any Person who, each to the Knowledge of the Company, is making or considering making, or who has made, an Acquisition Proposal. The Company will notify Parent as promptly as practicable (but in no event later than 24 hours) after receipt by the Purchaser Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries by any Person who, to the Knowledge of the Company, is making or considering making or who has made, an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent informed of the status and details (provided that including amendments or proposed amendments) of any such limitation will not apply with respect to the Parent Acquisition Proposal or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), request. The Company shall, and shall cause each its Subsidiaries and the directors, employees and other agents of the Company and its respective Representatives Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition Proposal and, to the extent within its power, to recover or on cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their Affiliates, representatives and advisors.
(b) Notwithstanding the first sentence of Section 6.05(a), the Company may, until the Company Stockholder Meeting (the "Cutoff Date"), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of this Section 6.05, (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal and, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, and (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (including the standstill provisions unless the Company shall have amended the Confidentiality Agreement to modify the standstill provisions therein to be no more restrictive of Parent than such Person is restricted pursuant to such confidentiality agreement). The Company shall provide Parent any information regarding the Company or its Subsidiaries provided to any Person making an Acquisition Proposal which was not previously provided to Parent. Nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with Rule 14d-9, Item 1012(a) of Regulation M-A and Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company's stockholders required by applicable law or regulation.
(c) Except as permitted in this Section 6.05(c), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, or take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of this Agreement and the Merger or with the recommendation to stockholders referred to in Section 2.08 hereof, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the Cutoff Date, the Board of Directors of the Company shall be permitted not to recommend to its stockholders approval and adoption of this Agreement and the Merger, or to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 2.08 hereof (each, an "Adverse Recommendation Change"), but only if (i) the Company has complied with the terms of this Section 6.05, (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action could reasonably be deemed to be inconsistent with its fiduciary duties under applicable law, (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action, together with a full and complete copy of the Superior Proposal at least three Business Days prior to the Adverse Recommendation Change (it being understood and agreed that any amendment to the financial terms or any other material terms of such Superior Proposal shall require a new notice and a new three-Business Day period), (v) the Company shall have negotiated in good faith with Parent during such three-Business Day period to make such amendments to the terms and conditions of this Agreement as would enable the Board of Directors of the Company to proceed with its recommendation of this Agreement (as so amended) and the Merger and not make the Adverse Recommendation Change, and (vi) prior to the expiration of such three-Business Day period, Parent fails to make a proposal to adjust the terms and conditions of this Agreement that the Board of Directors of the Company determines in good faith (after consultation with its financial advisors) to be at least as favorable as the Superior Proposal.
(d) During the period from the date of this Agreement with respect to until the Effective Time or earlier termination of this Agreement, the Company shall not terminate, amend, modify or waive any Acquisition Proposal, and shall promptly (and in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) a written description provision of any expression of interest, inquiry, proposal confidentiality or offer standstill agreement relating to a possible an Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from Proposal to which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party it or any of its Subsidiaries is a party (other than any involving Parent or its Subsidiaries). During such period, the Other Interested Party’s Representatives Company agrees to any of them or transmitted on behalf enforce, to the fullest extent permitted under applicable law, the provisions of any such agreement, including obtaining injunctions to prevent any breaches of them such agreements and to enforce specifically the Other Interested Party terms and provisions thereof in any court of the United States or any of the Other Interested Party’s Representativesstate thereof having jurisdiction.
Appears in 1 contract
Samples: Merger Agreement (Pulitzer Inc)
No Solicitation; Other Offers. From (a) During the date of this Agreement until Pre-Closing Period, neither the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) shall notCompany nor any Seller will, and shall the Company and each Seller will cause each of its such Person’s respective Representatives controlled Affiliates and direct such Person’s representatives (including employees and service providers) not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, knowingly entertain or encourage, or knowingly take any action to solicit, initiate, facilitate, support, seek, induce, entertain or encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; Buyer, (iii) furnish to any Person other than to each other Buyer any information that is the Company or such Seller believes or should reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; , (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or , (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each the holders of equity interests of the Company, the Purchaser and the Parent (provided that such limitation will not apply vi) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Parent Company or Purchaser other than where the underlying transaction is reasonably expected Blocker or (vii) resolve, propose or agree to do any of the foregoing. From and following the date of this Agreement, the Company and the Sellers further agree not to release any Persons described in the preceding sentence from any obligations under such non-disclosure or similar agreements without the prior written consent of Buyer. The Company and each Seller shall be an alternative transaction to responsible for any breach of this Section 7.19 by any of its representatives (including employees and service providers).
(b) The Company and the Transactions), shallSellers will, and shall the Company and each Seller will cause each of its such Person’s respective Representatives Affiliates and representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. Subject to any confidentiality obligations by which the Company may be bound under the terms of any confidentiality agreement between the Company and any Other Interested Party (as defined below) entered into prior to the date of this Agreement, and during the Pre-Closing Period, the Company shall promptly (and in any event within 24 hoursone Business Day from the receipt thereof) provide Purchaser or the Shareholders Representatives, as applicable, Buyer with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction Proposal, or any request for information that would reasonably be expected to be used for the purposes of formulating any inquiry, proposal or offer regarding a possible Acquisition Proposal, that is received by them the Company, the Blocker or any Seller or any of their respective representatives from any PersonPerson (other than Buyer), including in such description the identity of the Person from which such expression of interest, inquiry, proposal proposal, offer or offer request for information was received (the "“Other Interested Party"); ”) and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives representatives to the Company, the Blocker, any Seller or any of them their respective representatives or transmitted on behalf of the Company, the Blocker, any Seller or any of them their respective representatives to the Other Interested Party or any of the Other Interested Party’s Representativesrepresentatives, in each case, relating to a possible Acquisition Proposal. Promptly (and in any event within two (2) Business Days) following the execution of this Agreement, the Company shall deliver written notices to request the return or destruction of all confidential information to all Persons (except for Buyer) who have received confidential information pursuant to non-disclosure or similar agreements in connection with a potential Acquisition Proposal, financing of the Company or similar transaction, in accordance with any return or destroy obligations included under such non-disclosure or similar agreements.
(c) Without limiting the foregoing, Buyer understands, acknowledges and agrees that (i) the Company has undergone an extensive bid process (the “Bid Process”), (ii) the Company may receive further submissions or offers or reach-outs after the date hereof pursuant to the Bid Process and (iii) the receipt of such submission or offers or reach-outs in connection with such Bid Process and acknowledgment of receipt thereof shall not breach this Section 7.19 (provided, that in connection with any such acknowledgment of receipt, the Company shall inform the third party making such submission or offer or reach-out that the Bid Process has concluded and that the Company is contractually restricted from engaging in any discussions with respect to an Acquisition Proposal).
Appears in 1 contract
Samples: Securities Purchase Agreement (e.l.f. Beauty, Inc.)
No Solicitation; Other Offers. From and after the date of this Agreement hereof until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholderexcept with the prior written consent of Purchaser, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Seller shall not, and shall cause each Smartposting Group Company and each of its respective and Smartposting Companies’ Representatives not to, directly or indirectly: , (ia) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, or take any action to solicit, initiate, facilitate, support, seek, induce, entertain or encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes, constitutes or that would reasonably be expected to lead to, an Acquisition Proposal; , (iib) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; Purchaser, (iiic) furnish to any Person other than to each other Purchaser any information that is Seller or Smartposting believes or should reasonably expected to know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; , (ivd) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; Proposal or (ve) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholdersthe stockholders of Smartposting. Each Selling ShareholderExcept with the prior written consent of Purchaser, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), Seller shall, and shall cause each Smartposting Company and each of its respective and Smartposting Companies’ Representatives to, to immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal, and shall promptly (and in any event within 24 hours) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) an oral and a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction Proposal, or any request for information that could reasonably be expected to be used for the purposes of formulating any inquiry, proposal or offer regarding a possible Acquisition Proposal, that is received by them any Smartposting Group Company or any Representatives of any Smartposting Group Company from any PersonPerson (other than Purchaser), including in such description the identity of the Person from which such expression of interest, inquiry, proposal proposal, offer or offer request for information was received (the "“Other Interested Party")”) and the material financial terms of such expression of interest, inquiry, proposal, offer or request for information; and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any Smartposting Group Company or any Representatives of them any Smartposting Group Company or transmitted on behalf of any Smartposting Group Company or any Representatives of them any Smartposting Group Company to the Other Interested Party or any of the Other Interested Party’s Representatives.
Appears in 1 contract
Samples: Share Purchase Agreement (IE LTD)
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company(a) Except as required under applicable Law, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Company shall not, and shall cause each not authorize or permit any of its respective Representatives not Subsidiaries, officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, initiate or take any action to solicitfacilitate or encourage the submission of any Acquisition Proposal, initiate(ii) enter into or participate in any discussions or negotiations with, facilitatefurnish any confidential information relating to the Company or any of its Subsidiaries or afford access to the business, supportproperties, seekassets, inducebooks or records of the Company or any of its Subsidiaries to, otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any inquirieseffort by, announcements or communications relating toany third party that is seeking to make, or the making of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead tohas made, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than each other; (iii) furnish grant any waiver or release under any standstill or similar agreement to any Person other than to each other any information that is reasonably expected to be used for which the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal Company or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent its Subsidiaries is a party.
(provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), b) The Company shall, and shall cause each its Subsidiaries, officers, directors, employees, investment bankers, attorneys and other agents and advisors to, notify ABI promptly (but in no event later than 24 hours) after receipt by any of such Persons of any Acquisition Proposal, any indication by a third party to any of such Persons that it is considering making an Acquisition Proposal or any request for confidential information relating to the Company or any of its respective Representatives Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party that the Company reasonably believes may be considering making, or has made, an Acquisition Proposal. The Company shall, and shall cause all such other Persons to identify the third party making, and the terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall, and shall cause all such other Persons to, keep ABI fully informed, on a current basis, of the status and details of any such Acquisition Proposal, indication or request. The Company shall, and shall cause all such other Persons to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations and negotiations, if any, with any Persons third party conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal, Proposal and shall promptly use its commercially reasonable best efforts to cause any such Party (and or its agents or advisors) in possession of confidential information about the Company or any event within 24 hours) provide Purchaser of its Subsidiaries that was furnished by or the Shareholders Representatives, as applicable, with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity of the Person from which such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party Company to return or destroy all such information.
(c) For the avoidance of doubt, nothing in this Agreement shall restrict (i) any holder of Company Shares from considering, negotiating or accepting any Acquisition Proposal, and nothing herein shall be construed to require any holder of Company Shares to participate or sell Company Shares in the Other Interested Party’s Representatives to any of them Offer or transmitted on behalf of any of them to through the Other Interested Party or any of the Other Interested Party’s Representatives.Trust,
Appears in 1 contract
Samples: Transaction Agreement
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company, the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactionsa) The Company shall not, and shall cause each not permit any of its respective Representatives not Subsidiaries to, directly and shall use its best efforts to ensure that its officers, directors or indirectly: (i) employees, or any investment bankers, consultants or other agents retained by it or any of its Subsidiaries to not, solicit, initiate, facilitateencourage the submission of any Acquisition Proposal or engage in discussions or negotiations or furnish to any person any information with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. The Company will notify Parent within 48 hours of receipt by the Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries by any person who, supportto the knowledge of the Company, seekis making or considering making or who has made, inducean Acquisition Proposal. The Company shall provide such notice orally and in writing including the terms and conditions of any such Acquisition Proposal or request. The Company shall, entertain and shall cause its Subsidiaries and the directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any persons conducted prior to the date hereof with respect to any Acquisition Proposal and, to the extent within its power, to recover or encouragecause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company's stockholders if, in the good faith judgment of the majority of the disinterested members of the Board of Directors of the Company, failure to so disclose would be inconsistent with their fiduciary duties and violative of applicable law.
(b) Notwithstanding the first sentence of Section 5.2(a), the Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any person in response to an unsolicited Acquisition Proposal by such person if (1) the Company has complied with the terms of this Section 5.2, (2) a majority of the Board of Directors of the Company reasonably determines in good faith that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, and (3) such person executes a confidentiality agreement in substantially the form of the Confidentiality Agreement (as defined below) (including the standstill provisions).
(c) Except as permitted by the second sentence of this Section 5.2(c), neither the Board of Directors of the Company nor any committee thereof shall (1) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, or take any action to solicitnot explicitly permitted by this Agreement that would be inconsistent with, initiateits approval of the Offer and the Merger, facilitate, support, seek, induce(2) approve or recommend, or encourage any inquiries, announcements publicly propose to approve or communications relating to, or the making of any submission, proposal or offer that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating torecommend, any Acquisition Proposal with any Person other than each other; or (iii3) furnish cause the Company to any Person other than to each other any information that is reasonably expected to be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iv) accept any Acquisition Proposal or enter into any agreementletter of intent, arrangement agreement in principle, acquisition agreement or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating similar agreement related to any Acquisition Proposal; . The Board of Directors of the Company shall be permitted (1) not to recommend to its shareholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (2) to withdraw, or modify in a manner adverse to Parent, its recommendation to its shareholders referred to in Section 1.2 hereof, (3) approve or recommend any Superior Proposal or (v4) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser terminate this Agreement and the Parent (provided that such limitation will not apply in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (x) the Parent or Purchaser other than where Company has complied with the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), shall, and shall cause each of its respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date terms of this Agreement with respect to any Section 5.2, (y) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, and shall promptly (and in any event within 24 hoursz) provide Purchaser or the Shareholders Representatives, as applicable, with: (i) a written description Board of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity Directors of the Person from which Company determines in good faith, after consultation with outside legal counsel, that the failure to take such expression action could reasonably be deemed to be inconsistent with its fiduciary duties under applicable law.
(d) For purposes of interest, inquiry, proposal or offer was received (the "Other Interested Party"); and (ii) a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s Representatives.this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the respective Closing Date or the termination of this Agreement in accordance with its terms, each Selling Shareholder, each Company(a) Subject to Section 6.04(b), the Purchaser and Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is considered by Parent to be an alternative transaction to the Transactions) Company shall not, and the Company shall cause each of its respective Subsidiaries and its and their Representatives not to, directly or indirectly: , (i) solicit, initiate, facilitate, support, seek, induce, entertain or encourage, initiate or take any action to solicit, initiate, facilitate, support, seek, induce, facilitate or encourage any inquiries, announcements inquiries or communications relating toindication of interests regarding, or the making or submission of any submission, proposal or offer that constitutes, or that would could reasonably be expected to lead toresult in, an any Acquisition Proposal; , (ii) enter into, into or participate in, maintain or continue in any discussions or negotiations regarding any Acquisition Proposal or any inquiry or indication of interest with respect thereto, or furnish or disclose any 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, or otherwise cooperate in any way with, or take any action to facilitate or encourage any effort by, any Third Party that is seeking to make, or has made, any Acquisition Proposal or any inquiry or indication of interest with any Person other than each other; respect thereto, (iii) furnish withhold, amend, withdraw or modify in a manner adverse to Parent, the Company Board Recommendation (or recommend any Person other than to each other Acquisition Proposal, or any information that is reasonably expected to be used for the purposes inquiry or indication of formulating any inquiryinterest with respect thereto, expression of interest, proposal or offer relating to an Acquisition Proposal or take any other action regarding or make any inquiry, expression statement inconsistent with the Company Board Recommendation) (any of interest, proposal or offer that constitutes, or would reasonably be expected to lead tothe foregoing in this clause (iii), an Acquisition Proposal; “Adverse Recommendation Change”) or (iv) accept any Acquisition Proposal or enter into any agreement, arrangement agreement in principle, letter of intent, term sheet or understanding (whether written or oral) providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise other similar instrument relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal or any matter related thereto to the vote of their shareholders. Each Selling Shareholder, each Company, the Purchaser and the Parent (provided that such limitation will not apply with respect to the Parent or Purchaser other than where the underlying transaction is reasonably expected to be an alternative transaction to the Transactions), The Company shall, and shall cause each of its respective Subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted Third Party (other than Parent and its Representatives) that may be ongoing as of the date hereof with respect to any actual or potential Acquisition Proposal or any inquiry or indication of interest with respect thereto. The Company shall use its commercially reasonable efforts to obtain, in accordance with the terms of any applicable confidentiality agreement, the return or destruction of any confidential information previously furnished to any such Person by the Company, any of its Subsidiaries or any of its or their Representatives.
(b) (i) Notwithstanding Section 6.04(a), at any time prior to or on obtaining the Company Stockholder Approval, in response to a bona fide Acquisition Proposal received by the Company after the date hereof that was not solicited in violation of Section 6.04(a), or, prior to the date of this Agreement in violation of the Confidentiality Agreement, and with respect to any which the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel and financial advisors) (i) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and (ii) that taking the actions set forth in clauses (A), (B) or (C) below with respect to such Acquisition Proposal is necessary in order to comply with its fiduciary duties under Applicable Law, the Board of Directors of the Company, directly or indirectly through its Representatives, may, in response to such Acquisition Proposal, and shall promptly subject to compliance with Section 6.04(c) and Section 6.04(d), (and in any event within 24 hoursA) provide Purchaser or access to its properties, Contracts, personnel, books and records and furnish information, data and/or draft agreements with respect to the Shareholders Company and its Subsidiaries to the Person making such Acquisition Proposal and its Representatives, as applicable(B) participate in discussions or negotiations with the Person making such Acquisition Proposal and its Representatives regarding such Acquisition Proposal or (C) in the event that the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel and financial advisors) that such Acquisition Proposal constitutes a Superior Proposal, with: make an Adverse Recommendation Change and/or enter into an agreement regarding such Superior Proposal; provided, however, that the Board of Directors of the Company shall not make an Adverse Recommendation Change or enter into an agreement regarding any Superior Proposal unless (ix) a the Company has given Parent five (5) Business Days prior written description notice of its intention to take such action (it being understood and agreed that any change to the consideration offered or other material terms of any expression Superior Proposal shall require an additional notice to Parent and a new five (5) Business Day notice period), (y) the Board of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by them from any Person, including in such description the identity Directors of the Person from which Company shall have considered in good faith (after consultation with its outside legal counsel and financial advisors) any changes or revisions to this Agreement proposed by Parent and shall not have determined that the Superior Proposal would no longer constitute a Superior Proposal if such expression of interest, inquiry, proposal or offer was received (the "Other Interested Party"); changes were to be given effect and (iiz) a copy (1) the Company has complied in all material respects with its obligations under this Section 6.04 and (2) the Company shall have terminated this Agreement in accordance with the provisions of each written communication Section 8.01(d)(ii) hereof and a complete summary of each other communication transmitted on behalf of the Other Interested Party or any of Company pays Parent the Other Interested Party’s Representatives to any of them or transmitted on behalf of any of them to the Other Interested Party or any of the Other Interested Party’s RepresentativesCompany Termination Fee in accordance with Section 8.03.
Appears in 1 contract
Samples: Merger Agreement (Logicvision Inc)
