No Solicitation; Other Offers. (a) The Company shall not, and shall not permit any of its 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, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 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. (c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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. (a) The From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the Company shall and its Subsidiaries will not, and shall not permit any of the Company will use its Subsidiaries to, and shall reasonable best efforts to cause its the officers, directors and directors, employees, and any investment bankers, consultants, financial advisors, accountants, consultants or other agents or other representatives retained by it or any (collectively, "Agents") of the Company and its Subsidiaries not to, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) or engage in discussions or negotiations with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company or furnish any of its Subsidiaries to any Person any information with respect who, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or knowingly (iv) take any other action to facilitate any effort inquiries or attempt the making of any proposal that constitutes or that could reasonably be expected to make lead to an Acquisition Proposal. Any violation The Company will notify Parent promptly (but in no event later than 24 hours) after receipt by the Company of any Acquisition Proposal or any request for nonpublic information relating to the foregoing restrictions Company or any of its Subsidiaries by any Person who, to the knowledge of the Company's representatives, whether is making, or not has made, an Acquisition Proposal. The Company shall promptly provide such representative is so authorized notice orally and whether in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or not such representative is purporting to act on behalf 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 or otherwise, shall be deemed a breach provide to Parent copies of this Agreement by any written communications between the CompanyCompany and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisorsProposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange 1934 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 LawProposal.
(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)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 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 the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors 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, faith that such Acquisition Proposal would reasonably be expected is likely 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 constitute a breach of its fiduciary duties under applicable Lawlaw, and (iiiii) such Person executes a confidentiality agreement in a form with terms no less favorable to the Company than those contained in the Confidentiality Agreement. Prior Agreement (except as to providing any information to or entering into discussions or negotiations with any Person in connection with an Acquisition Proposal by such Person, the standstill provisions) and (iv) 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 have 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, Parent prior written notice advising Parent that the failure it intends to take such action would cause the Company Board to breach its fiduciary duties under applicable Lawaction.
(c) Except as permitted by the second sentence The Board of this Section 6.05(c), neither Directors of the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 stockholders referred to in Section 1.02 6.02 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 (xi) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Company Board of Directors determines in good faith, upon the recommendation of a nationally recognized financial advisor, faith constitutes a Superior Proposal, (yiii) the Board of Directors of 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 constitute a breach of its fiduciary duties under applicable Law law and (ziv) after five Business Days the Company shall have elapsed following the Company's delivery delivered to Parent of a prior written notice advising Parent that the Company Board has received a Superior Proposal specifying the material terms and conditions of it intends to take 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)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. (a) The Company shall not, and shall not permit any of its Subsidiaries to, and shall cause use its best efforts to ensure that its officers, directors and or employees, and or any investment bankers, consultants, financial advisors, accountants, agents consultants or other representatives advisors or agents retained by it or any of its Subsidiaries do not to, solicit, initiate or intentionally encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees and other advisors or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 cause to be destroyed request that all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisorsadvisors be returned to the Company or destroyed. Nothing contained in this Agreement shall prevent the Company Board of Directors from complying with Rule 14d-9 or Rule 14e-2 under the Exchange 1934 Act with respect to any Acquisition Proposal or making any disclosure to the Company's stockholders thatif, in the good faith judgment of the majority Board of the members of the Company BoardDirectors, upon recommendation of the Special Committee after consultation with and advice from its outside legal counsel, is required by failure to make such disclosure would constitute a breach of the fiduciary duties of the Board of Directors under applicable Lawlaw or otherwise violate 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(c7.04(a), 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 the Board of the Company Board Directors 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, faith after consultation with and advice from outside legal counselthe Company Financial Advisor or a financial advisor of nationally recognized reputation, that the failure to take such action would cause the Company Board to breach its fiduciary duties under applicable Law, Acquisition Proposal may result in a Superior Proposal 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, 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 person making it) as promptly as practicable (but in no case later than 24 hours) hours after its receipt thereofreceipt, and in any event before providing any information to or entering into discussions or negotiations with any person in connection with the Acquisition Proposal); shall promptly provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and ; shall thereafter promptly inform Parent on a prompt basis of the status of any discussions or negotiations with such a third party, party and any material changes to the terms and conditions of such Acquisition Proposal, ; and shall promptly give deliver to Parent a copy of any information delivered to such Person person which has not previously been provided or made available delivered by the Company 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.
(cd) Except as permitted by the second sentence of this Section 6.05(c7.04(d), neither the Company Board of Directors nor any committee thereof shall (i1) 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 hereofstockholders, or take any action not explicitly permitted by this Agreement that would be inconsistent with with, its approval of the Offer and the Merger, (ii2) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii3) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement, commitment agreement or similar agreement or document related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time Board of acceptance of the Shares for payment pursuant to the Offer, the Company Board Directors shall be permitted (i1) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii2) to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereofstockholders, (iii3) to approve or recommend any Superior Proposal or (iv4) to terminate this Agreement in accordance with Section 8.01(c)(ii11.01(c)(ii) hereof below and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if in each case (xy) 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, upon the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 not be consistent with 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)law.
(de) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Comshare Inc), Merger Agreement (Comshare Inc)
No Solicitation; Other Offers. (a) The Neither the Company shall not, and shall not permit nor any of its Subsidiaries toshall, and nor shall cause its officers, directors and employees, and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it the Company or any of its Subsidiaries authorize or permit any of its or their Representatives to, and the Company shall instruct, and cause each applicable Subsidiary, if any, to instruct, each such Representative not to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 7.03(b), (as hereinafter definedi) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company 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. Any violation of the foregoing restrictions by any of its Subsidiaries to, afford access to the Company's representativesbusiness, whether properties, assets, books or not such representative is so authorized and whether or not such representative is purporting to act on behalf records of the Company or otherwiseany of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that is seeking to make, or has made, any Acquisition Proposal, (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (B) approve any transaction under, or any Third Party becoming an “interested shareholder” under, Section 302A.011 of the MBCA, or (C) amend or grant any waiver or release or approve any transaction or redeem any Company Rights under the Company Rights Agreement, except in connection with the transactions contemplated by this Agreement, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal. Subject to Section 7.03(b), neither the Company Board nor any committee thereof shall be deemed fail to make, withdraw or modify in a breach manner adverse to Parent or Merger Subsidiary the Board Recommendation, or recommend an Acquisition Proposal, fail to recommend against acceptance of this Agreement by any tender offer or exchange offer for the CompanyCompany Shares within 10 Business Days after the commencement of such offer, or take any action or make any public statement inconsistent with the Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an “Adverse Recommendation Change”). The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company its and its Subsidiaries their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions and or negotiations, if any, with any Persons Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and, and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of the extent within Company or any of its power, to recover Subsidiaries that was furnished by or cause to be destroyed all information concerning on behalf of the Company and its Subsidiaries at any time after April 1, 2006 to return or destroy (and confirm destruction of) all such information.
(b) Notwithstanding the foregoing, prior to the acceptance for payment of Company Shares under the Offer (in the possession case of clauses (i) through (iii) below), the Company Board, directly or indirectly through any Representative, may (i) engage in negotiations or discussions with any Third Party that, subject to the Company’s compliance with this Section 7.03, has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board reasonably believes, after considering the advice of its outside legal counsel and of a financial advisor of nationally recognized reputation, is reasonably likely to lead to a Superior Proposal, (ii) thereafter furnish to such Third Party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement with terms no less favorable to the Company than those contained in the Confidential Disclosure Agreement dated as of August 15, 2006 between the Company and Oracle Corporation (the “Confidentiality Agreement”) and containing additional provisions that expressly permit the Company to comply with the terms of this Section 7.03 (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of such Persons and their affiliatesSuperior Proposal, representatives and advisorsmake an Adverse Recommendation Change and/or (iv) take any non-appealable, final action that any court of competent jurisdiction orders the Company to take, but in each case referred to in the foregoing clauses (i) through (iii), only if the Company Board determines in good faith by a majority vote, after considering the advice of outside legal counsel to the Company, that it must take such action to comply with its fiduciary duties under Applicable Law. Nothing contained in this Agreement herein shall prevent the Company Board from complying with Rule 14d-9 or and Rule 14e-2 14e-2(a) under the Exchange 1934 Act with respect regard to an Acquisition Proposal, so long as any action taken or statement made to so comply is consistent with this Section 7.03.
(c) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of the preceding subsection unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than 24 hours) after receipt by the Company or any of its Subsidiaries (or any of their respective Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that is seeking to make an Acquisition Proposal or any other indication that a Third Party is considering making an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the terms and conditions of, any disclosure to the Company's stockholders thatsuch Acquisition Proposal, in the good faith judgment indication or request. The Company shall keep Parent fully informed, as promptly as practicable, of the majority status and details of any such Acquisition Proposal, indication or request, including the material resolved and unresolved issues related thereto and material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to 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), at which the Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, Board is reasonably expected to consider 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 Proposal. The Company if shall promptly provide Parent with (i) a majority any non-public information concerning the Company’s business, present or future performance, financial condition or results of the Company Board determines in good faithoperations, upon the recommendation of the Special Committee after the Special Committee has received the advice of Xxxxxxxx Xxxxx or another nationally recognized financial advisor, provided to any Third Party that such Acquisition Proposal would reasonably be expected was not previously provided 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 LawParent, and (ii) copies of all other documents and written communications relating to 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 Personexchanged between the Company, any of its Subsidiaries or any of their respective Representatives, on the Company shall notify Parent of any Acquisition Proposal (includingone hand, without limitation, the material terms and conditions thereof and the identity of the Person Third Party 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 such Acquisition Proposal or amendments or supplements theretoany of its Representatives, 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 Lawother hand.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 (Stellent Inc), Merger Agreement (Oracle Corp)
No Solicitation; Other Offers. (a) The Subject to Section 6.5(b), the Company shall not, and the Company shall cause its Subsidiaries and its and their Representatives not permit to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or indication of interests regarding, or the making or submission of any proposal or offer that constitutes, or could reasonably be expected to result in, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations (oral or written) regarding any Acquisition Proposal or any inquiry or indication of interest with respect thereto, or furnish or disclose any non-public information relating to the Company or any of its Subsidiaries or, except as required by Applicable Law, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, and shall cause its officersor otherwise assist, directors and employeescooperate in any way with, and or take any investment bankersaction to knowingly facilitate or knowingly encourage any effort by, consultantsany Third Party that is seeking to make, financial advisorsor has made, accountants, agents or other representatives retained by it or any of its Subsidiaries not to, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) or engage in discussions any inquiry or negotiations or furnish to any Person any information indication of interest with respect thereto, (iii) fail to an Acquisition Proposal make, withdraw or knowingly facilitate modify in a manner adverse to Parent, the Company Board Recommendation (or publicly recommend any effort or attempt to make an Acquisition Proposal. Any violation , or any inquiry or indication of interest with respect thereto, or take any public action or make any public statement inconsistent with the Company Board Recommendation) (any of the foregoing restrictions by in this clause (iii), an “Adverse Recommendation Change”) or (iv) enter into any agreement, agreement in principle, letter of the Company's representativesintent, whether term sheet or not such representative is so authorized and whether or not such representative is purporting other similar instrument relating to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyany Acquisition Proposal. The Company shall, and shall cause each of its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company its and its Subsidiaries their Representatives to, immediately cease immediately and cause to be terminated all activities, any discussions and negotiations, if any, or negotiations with any Persons conducted prior to Third Party (other than Parent and its Representatives) that may be ongoing as of the date hereof with respect to any Acquisition Proposal and, to the extent within its power, to recover actual 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 potential Acquisition Proposal or making any disclosure to the Company's stockholders that, in the good faith judgment inquiry or indication of the majority of the members of the Company Board, upon recommendation of the Special Committee after consultation interest with and advice from its outside legal counsel, is required by applicable Lawrespect thereto.
(b) Notwithstanding Section 6.5(a), at any time prior to obtaining the first sentence Company Stockholder Approval, in response to a bona fide Acquisition Proposal received by the Company after the date hereof that was not solicited in material violation of Sections 6.05(aSection 6.5(a), or, prior to the time of acceptance of Shares pursuant to the Offer and subject to the provisions date of this Section 6.05(bAgreement in material violation of that certain Letter Agreement dated August 17, 2009, between Parent and the Company (the “Letter Agreement”) and Section 6.05(c), with respect to which 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 Board of the Shares outstanding or fifty percent of the consolidated assets Directors of the Company if determines in good faith (after consultation with its outside legal counsel and financial advisors) (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 constitutes, or could reasonably be expected to result in lead to, a Superior Proposal and (as hereinafter definedii) andthat 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 subject to compliance with Section 6.5(c) and Section 6.5(d), (A) provide access to its properties, Contracts, personnel, books and records and furnish information, data and/or draft agreements with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal and its Representatives, (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 and advice from its outside legal counselcounsel and financial advisors) that such Acquisition Proposal constitutes a Superior Proposal, make an Adverse Recommendation Change and/or enter into an agreement regarding such Superior Proposal; provided, however, that the failure Board of Directors of the Company shall not make an Adverse Recommendation Change unless (x) the Company has given Parent five (5) Business Days prior written notice of its intention to take such action would cause and all of the material terms and conditions of such Superior Proposal as initially proposed by such Person (it being understood and agreed that any material change to the consideration offered and/or other change to the material terms of any Superior Proposal as initially proposed by such Person shall require an additional notice to Parent and a new three (3) Business Day notice period), (y) the Board of Directors of the Company Board shall have considered in good faith and, if requested by Parent in writing, the Company shall have met with Parent to breach discuss (after consultation with its fiduciary duties outside legal counsel and financial advisors) any changes or revisions to this Agreement committed to by Parent and shall not have determined that the Superior Proposal would no longer constitute a Superior Proposal if such changes were to be given effect or shall have determined to make such Adverse Recommendation Change even if such changes were to be given effect and (z) the Company has complied in all material respects with its obligations under applicable Lawthis Section 6.5.
(c) The Company shall promptly (and in any event within two (2) Business Days) advise Parent orally and in writing of the receipt by the Company or any of its Representatives of (i) any indication that a Third Party is considering making an Acquisition Proposal, and (ii) any request for information by any Third Party that may be considering making an Acquisition Proposal or any inquiry or indication of interest with respect thereto, or (iii) any Acquisition Proposal, in each case, along with the identity of the Person making any such Person executes Acquisition Proposal, and, to the extent available, the Company shall provide Parent with a copy or a written summary of the material terms of any such Acquisition Proposal. The Company shall promptly keep Parent reasonably informed of the status (including any change to the material terms) of any such Acquisition Proposal, potential Acquisition Proposal or information request. Following a determination by the Board of Directors of the Company that an Acquisition Proposal constitutes a Superior Proposal, the Company shall deliver to Parent a written notice advising it that the Board of Directors of the Company has made such determination together with a copy of any draft or definitive agreements related to such Superior Proposal and a summary of the material terms of such Superior Proposal. The Company agrees that it shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement in a form no less favorable or other agreement with any Person subsequent to the date of this Agreement which prohibits the Company than the Confidentiality Agreement. from providing such information to Parent.
(d) Prior to providing furnishing any information to or entering into discussions or negotiations with any Person in connection with making an Acquisition Proposal by such Personpursuant to Section 6.5(b) and Section 6.5(c), the Company shall notify Parent of any Acquisition Proposal (including, without limitationreceive from such Person an executed confidentiality agreement, the material terms of which shall be no less favorable to the Company than, in the aggregate, those contained in the letter agreement dated as of May 11, 2009 between the Company and conditions thereof and Parent, as amended (the identity of the Person making it“Confidentiality Agreement”) 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 which 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 be provided or made available for informational purposes only to Parent). The Company shall promptly provide to Parent any non-public information concerning the Company or any of its Subsidiaries not waive previously provided to Parent or the Parent Representatives that is provided to any Person making an Acquisition Proposal. The Company agrees that neither it nor any of its Subsidiaries shall terminate, waive, amend or modify any provision or any existing standstill or confidentiality provisions contained in agreements to which it or any of its Subsidiaries is a party, unless the Board of Directors of 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 is necessary in order to breach comply with its fiduciary duties under applicable LawApplicable Law (in which case, such termination, waiver, amendment or modification shall, to the extent approved by Parent, also apply to the Confidentiality Agreement and the Letter Agreement, to the extent applicable).
(ce) Except as permitted by Notwithstanding anything to the second sentence of contrary contained herein, nothing in this Section 6.05(c), neither 6.5 shall prohibit or restrict the Company or the Board nor of Directors of the Company from (a) taking and/or disclosing to the stockholders of the Company a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or (b) making any committee thereof shall (i) withdraw or modify, or publicly propose disclosure to withdraw or modifythe stockholders of the Company if, in a manner adverse to Parentthe good faith judgment of the Board of Directors of the Company, its recommendation to its stockholders referred to in Section 1.02 hereof, or take any action not explicitly permitted by this Agreement that such disclosure would be inconsistent with its approval of necessary under Applicable Law (including Rule 14d-9 and Rule 14e-2 promulgated under 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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 ProposalExchange Act); provided, however, that in no event shall this Section 6.5(e) affect the obligations of the Company shall not enter into an agreement with respect to a Superior Proposal unless the Company shall terminate this Agreement otherwise specified in accordance with Section 8.01(c)(ii)6.5.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Atheros Communications Inc), Merger Agreement (Intellon Corp)
No Solicitation; Other Offers. (a) The Company shall and its Subsidiaries will not, and shall not permit any of its Subsidiaries to, and shall the Company will cause its the officers, directors and employees, employees of the Company and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it or any of its 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) take any action to solicit, initiate or knowingly facilitate or encourage the submission of any Acquisition Proposal (as hereinafter definedincluding by amending, or granting any waiver under, the Rights Agreement), (ii) or engage in discussions or negotiations with, or furnish disclose any nonpublic information relating to any Person any information with respect to an Acquisition Proposal the Company or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation of the foregoing restrictions by any of its Subsidiaries or afford access to the Company's representativesproperties, whether books or not such representative is so authorized and whether or not such representative is purporting to act on behalf records of the Company or otherwiseany of its Subsidiaries to, shall be deemed a breach any Person who is considering making, or has made, an Acquisition Proposal, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of this Agreement by 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 is considering making an Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any Person who is considering making, or 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, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and details of any such Acquisition Proposal, indication or request. The Company and its Subsidiaries shall, and the Company shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisorsemployees, agents or other representatives and advisors 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisorsProposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange 1934 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 LawProposal.
(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)foregoing, the Company may negotiate or otherwise engage in substantive discussions or negotiations with, and furnish nonpublic information or access 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 the Company has complied with the terms of Section 7.04(a), (ii) the Board of Directors 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, faith that such Acquisition Proposal would could 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 could reasonably be deemed to constitute a breach of its fiduciary duties under applicable Lawlaw, and (iiiii) such Person executes a confidentiality agreement in a form with terms no less favorable to the Company than those contained in 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, Agreement and (iv) 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 have 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, Parent three Business Days' prior written notice advising Parent that the failure it intends to take such action would cause the Company Board to breach its fiduciary duties under applicable Lawaction.
(c) Except as permitted by the second sentence The Board of this Section 6.05(c), neither Directors of the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 stockholders referred to in Section 1.02 Sections 2.02 and 7.02 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 (xi) the Company has complied with the terms of Section 7.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Company Board of Directors determines in good faith, upon the recommendation of a nationally recognized financial advisor, faith constitutes a Superior Proposal, (yiii) the Board of Directors of 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 could reasonably be deemed to constitute a breach of its fiduciary duties under applicable Law law and (ziv) after five Business Days the Company shall have elapsed following the Company's delivery delivered to Parent of three Business Days' prior written notice advising Parent that the Company Board has received a Superior Proposal specifying the material terms and conditions of it intends to take 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)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. (a) The Company shall not, and shall not permit any of its Subsidiaries toEach Shareholder shall, and shall cause its officerstrustees, directors and employeesrepresentatives, and any consultants, investment bankers, consultantsattorneys, financial advisorsaccountants and other agents acting in its capacity as such (collectively, accountantsa person’s or entity’s “Representatives”) to, agents immediately cease any discussions, activities or negotiations with any other representatives retained by Person or Persons (other than Parent and Parent’s representatives) that may be ongoing with respect to any Acquisition Proposal. Each Shareholder further agrees that it and its Representatives (to the extent they are serving as a Representative of a Shareholder) shall not (i) directly or indirectly solicit, initiate, knowingly encourage or knowingly facilitate any inquiries or the making of any Acquisition Proposal, (ii) directly or indirectly participate in 2 any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries not or afford access to the business, properties, books, records, data or confidential information of the Company or any of its Subsidiaries 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 that constitutes, or may reasonably be expected to lead to, solicitan Acquisition Proposal, initiate (iii) recommend, adopt or encourage approve, or propose publicly to recommend, adopt or approve, an Acquisition Proposal, or (iv) agree or publicly propose to do any of the submission foregoing. Each Shareholder further agrees that it shall promptly notify Parent (but in no event later than forty-eight hours) after receipt by such Shareholder (or any of its Representatives) of any Acquisition Proposal, any inquiry that could be reasonably expected to lead to an Acquisition Proposal or of any request for information relating to the Company or its Subsidiaries by any Third Party that to the knowledge of the Shareholder may be considering making, or has made an Acquisition Proposal, which notice shall be provided in writing and shall identify the person making, and the terms and conditions of, any such Acquisition Proposal, inquiry or request (as hereinafter defined) including any material changes thereto and copies of any written materials received from such Third Party or engage its Representatives in discussions or negotiations or furnish connection therewith). The Shareholders shall keep Parent fully informed of any material change to any Person Acquisition Proposal, inquiry or request for information. The Shareholders shall enforce, to the fullest extent permitted under Applicable Law, the provisions of any information standstill, confidentiality or similar agreement entered into by the Shareholders or their respective Representatives, including where necessary, seeking to obtain injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. Notwithstanding anything to the contrary contained herein, if the Company or the Company Board is, subject to all the procedures, obligations, conditions and limitations otherwise applicable to the Company, engaging in an action permitted to be taken with respect to an Acquisition Proposal by the Company or knowingly facilitate the Company Board pursuant to Section 5.02 of the Merger Agreement, then a Shareholder may also engage in such action with respect to the subject Acquisition Proposal provided that the Shareholder has complied with all of the procedures, obligations, conditions and limitations otherwise applicable to the Company, including but not limited to the entry by such Shareholder into a Confidentiality Agreement and the compliance by the Shareholder with various notification obligations. Parent agrees that each Shareholder’s notification obligations hereunder may be satisfied by communications from the Company to Parent and any effort or attempt to make an Acquisition Proposalsuch notifications need not be provided by the Shareholder individually. Any Without limiting the foregoing, Parent and each of the Shareholders agree that any violation of the foregoing restrictions set forth in this Section 4 by any Representative of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, a Shareholder shall be deemed constitute a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 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 Shareholder 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 Law4.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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: Voting Agreement (Continucare Corp), Voting Agreement (Metropolitan Health Networks Inc)
No Solicitation; Other Offers. (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 hereof with respect to any Acquisition Proposal. The Company shall not, and shall not permit any of its 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, Representatives to not: (i) solicit, initiate or knowingly encourage or facilitate (including by way of furnishing information) the submission of any Acquisition Proposal or (as hereinafter definedii) 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. Any violation of the foregoing restrictions .
(b) The Company will notify Parent promptly (but in no case later than 48 hours after actual receipt by any an officer or director of the Company's representatives) of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to an Acquisition Proposal and shall provide Parent the material terms and conditions of such Acquisition Proposal, whether request or not inquiry, including the identity of the Person making such representative is so authorized Acquisition Proposal, request or inquiry and whether a copy of all written materials provided by or not such representative is purporting to act 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 otherwisesuch 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 would reasonably be expected to lead to an Acquisition Proposal. The Company shall notify Parent, in writing, of any decision of its board of directors (or any committee thereof) as to whether to enter into discussions or negotiations concerning any Acquisition Proposal or to provide nonpublic information or data to any Person that would reasonably be expected to lead to an Acquisition Proposal, which notice shall be deemed 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 discussions 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, request or inquiry, setting forth all such information as reasonably necessary to keep Parent reasonably informed and shall promptly provide Parent a breach copy of all written materials subsequently provided to, by or 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 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 , the Company shallmay negotiate or otherwise engage in substantive discussions with, and shall cause its Subsidiaries furnish information to, any 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 officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 Subsidiaries tofinancial advisor) that such Acquisition Proposal is, cease immediately 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 cause disclosure of all nonpublic written and oral information furnished to be terminated all activitiessuch third party on the Company’s behalf in substantially the form of the Confidentiality Agreement, discussions and negotiations(B) contemporaneously with furnishing any such nonpublic information to such third party, if any, with any Persons conducted prior the Company furnishes such nonpublic information to Parent (to the date hereof 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 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 advisorsCommon Stock. Nothing contained in this Agreement shall prevent the Company Board or its board of directors from complying with Rule 14d-9 or 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 ’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 law 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 Lawregulation.
(c) Except as permitted by the second sentence of in this Section 6.05(c6.04(c), neither the board of directors (or any committee thereof) of the Company Board nor any committee thereof shall not (i) withdraw or modify, or publicly propose to withdraw or modify, modify (in a manner adverse to Parent, ) its recommendation to its the Company’s stockholders referred to in Section 1.02 hereof, 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 Offer and the Merger, (ii) approve approve, recommend or recommend, or publicly propose take any position other than to approve or recommendrecommend rejection (including modifying any recommendation of rejection) of, any Acquisition Proposal or 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, commitment agreement or similar agreement related 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 time adoption of acceptance this Agreement and the Merger by the Company Stockholders, the board of directors of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its the Company’s stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii) to withdraw, withdraw or modify (in a manner adverse to Parent, its recommendation to its stockholders referred to ) the Company Recommendation (a “Change in Section 1.02 hereofthe Company Recommendation”), (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 (xA) the Company has complied with the terms of this Section 6.04, (B) the Company has received an unsolicited Acquisition Proposal which the Company Board board of directors (or any committee thereof) determines in good faith, upon the recommendation of a nationally recognized after consultation with its financial advisoradvisors, constitutes a Superior Proposal, (yC) the board of directors (or any committee thereof) of 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 counselcounsel and its financial advisors, that the failure to take such action would cause the Company Board could reasonably be deemed to breach be inconsistent with its fiduciary duties under applicable Law and law, (zD) after five Business Days have elapsed following the Company's delivery to Parent of 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 Board has received a Superior Proposal specifying determines in good faith, after consultation with its financial adviser, is no less favorable to the material terms and conditions stockholders of the Company than such Superior Proposal and identifying or that results in the Person making the Superior Proposal; provided, however, that board of directors (or any committee thereof) of the Company shall not 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, during the three Business Day period prior to effecting a Change in the Company Recommendation or terminating this Agreement to enter into an acquisition agreement with respect to a resulting from such Superior Proposal unless Proposal, the Company and its Representatives shall terminate negotiate in good faith with Parent and its Representatives regarding any revisions to the terms of the transaction contemplated by this Agreement in accordance with Section 8.01(c)(ii)that are proposed by Parent.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Crane & Co Inc), Merger Agreement (American Bank Note Holographics Inc)
No Solicitation; Other Offers. (a) The From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 11, neither the Company shall not, and shall not permit nor any of its Subsidiaries to, and shall cause its nor any of the officers, directors and directors, employees, and any investment bankers, consultants, financial advisors, accountants, agents consultants or other representatives retained by it or any agents of the Company and its Subsidiaries not towill, directly or indirectly, (i) solicit, initiate initiate, encourage, induce or encourage knowingly facilitate (including, without limitation by way of furnishing information) the submission of any Acquisition Proposal or any inquiries with respect thereto, (as hereinafter definedii) or engage in discussions or negotiations or furnish to with any Person any information with respect to concerning an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the foregoing restrictions by any knowledge of the Company's representatives, whether is making or not such representative is so authorized and whether considering making, or not such representative is purporting 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 Company of any Acquisition Proposal or any request for nonpublic information relating to act on behalf of the Company or otherwiseany of its Subsidiaries by any Person who, shall be deemed a breach to the knowledge of this Agreement by 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 (including, without limitation, amendments or proposed amendments) of any such Acquisition Proposal or request. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliatesAffiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange 1934 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 LawProposal.
(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(c7.04(a), the Company may may, until the earliest to occur of the Offer Completion Date, a purchase of Company Stock pursuant to the Option, and 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 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 the Company has complied with the terms of this Section 7.04, (ii) the Board of Directors 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, faith that such Acquisition Proposal would could reasonably be expected to result in a Superior Proposal (as hereinafter defined) and, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action would cause the Company Board could reasonably be deemed to constitute a breach of its fiduciary duties under applicable Lawlaw, and (iiiii) such Person executes a confidentiality agreement in a form with terms no less favorable to the Company than those contained in 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, Agreement (including the standstill provisions unless the Company shall notify have amended the Confidentiality Agreement to modify the standstill provisions therein to be no more restrictive of Parent of any Acquisition Proposal than such Person is restricted pursuant to such confidentiality agreement) and (including, without limitation, iv) 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 Company 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 have delivered to Parent prior written notice advising Parent that it intends to take such Person which has not previously been provided or made available to Parentaction. The Company shall not waive provide Parent any standstill or confidentiality provisions contained in agreements to which information regarding the Company is a party or its Subsidiaries provided to any Person making an Acquisition Proposal 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 was not previously provided to take such action would cause the Company Board to breach its fiduciary duties under applicable LawParent.
(c) Except as permitted by the second sentence of in this Section 6.05(c7.04(c), neither the Board of Directors of the Company Board nor any committee thereof shall (i) 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 MergerMerger 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, commitment agreement or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time Cutoff Date, the Board of acceptance Directors of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii) or to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 2.02 and/or Section 7.02 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 (xi) the Company has complied with the terms of this Section 7.04, (ii) the Company has received an unsolicited Acquisition Proposal which the Company Board of Directors determines in good faith, upon the recommendation of a nationally recognized financial advisor, faith constitutes a Superior Proposal, (yiii) the Board of Directors of the Company Board determines in good faith, upon the recommendation of the Special Committee after consultation by the Special Committee with and receipt of advice from its outside legal counsel, that the failure to take such action would cause the Company Board could reasonably be deemed to breach be inconsistent with its fiduciary duties under applicable Law law and (ziv) after five Business Days the Company shall have elapsed following the Company's delivery delivered to Parent of a prior written notice advising Parent that the Company Board has received a Superior Proposal specifying the material terms and conditions of it intends to take 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)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. (a) The From the date hereof until the termination hereof, the Company shall will not, and shall not permit any of will cause its Subsidiaries to, and shall cause its the officers, directors and directors, employees, and any investment bankers, consultants, financial advisorsattorneys, accountants, consultants or other agents or other representatives retained by it or any advisors of the Company and its Subsidiaries not to, directly or indirectly, (i) take any action to solicit, initiate initiate, facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) or engage in discussions negotiations with, or negotiations disclose any nonpublic information relating to the Company or furnish any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to, any Person who has made or, to the Company's knowledge, is considering making, an Acquisition Proposal, or (iii) grant any information 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 is considering making an Acquisition Proposal or knowingly facilitate any effort request for nonpublic information relating to the Company or attempt any of its Subsidiaries or for access to make the properties, books or records of the Company or any of its Subsidiaries by any Person who has made or, to the Company's knowledge, is considering making, an Acquisition Proposal. Any violation 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, indication or request. The Company shall keep Parent fully informed, on a current basis, of the foregoing restrictions by status and details of any of the Company's representativessuch Acquisition Proposal, whether indication or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyrequest. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisorsProposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule its fiduciary duties or Rules 14d-9 or Rule and 14e-2 under the Exchange 1934 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 LawProposal.
(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)foregoing, 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 who delivers a 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 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 Acquisition Proposal, (ii) the Board of Directors of the Company Board determines has determined in good faith, upon based on the recommendation terms of such Acquisition Proposal, including the Special Committee after the Special Committee has received the advice of Xxxxxxxx Xxxxx or another nationally recognized financial advisorproposed consideration per Share, that such Acquisition Proposal would could reasonably be expected to result in a Superior Proposal Proposal, (as hereinafter definediii) and, after consultation with and advice from outside legal counsel, the Board of Directors of the Company determines in good faith that the failure to take such action would cause is in the Company Board to breach its fiduciary duties under applicable Lawbest interests of the Company's shareholders, and (iiiv) such Person executes a confidentiality agreement in a form with terms no less favorable to the Company than those contained in 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, Agreement and (v) 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 have delivered 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, prior written notice advising Parent that the failure it intends to take such action would cause the Company Board to breach its fiduciary duties under applicable Lawaction.
(c) Except as permitted by provided in the second sentence next sentence, the Board of this Section 6.05(c), neither Directors of the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii) Merger by the Company's shareholders. The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders shareholders 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) 7.02 hereof and in connection therewith recommend or authorize the Company to enter into an agreement with respect to such Superior Proposal, but only if in each case (x) and the Company has received an Acquisition Proposal which the Company Board determines in good faith, upon the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (ymay enter into) 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 (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, but only if (i) the Company has complied with the terms of this Section 7.03, (ii) a Superior Proposal unless is pending at the time the Board of Directors of the Company determines to take any such action, (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) the Company shall terminate this Agreement have delivered to 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 such notice, an offer that the Board of Directors of the Company determines in accordance good faith (after consultation with Section 8.01(c)(ii)its financial advisors) to be as favorable to the Company's shareholders as such Superior Proposal.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Charming Shoppes Inc), Merger Agreement (Catherines Stores Corp)
No Solicitation; Other Offers. (a) The During the period beginning on the date of this Agreement and ending on the earlier to occur of (x) the Acceptance Time or (y) the date on which this Agreement is terminated in accordance with Section 11.1, subject to Section 7.3(b), the Company shall not, and shall not permit any of its 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, and shall direct and use all commercially reasonable efforts to cause its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors or representatives (collectively, “Representatives”) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) enter into, participate in or engage in continue any discussions or negotiations or with, furnish to any Person 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, otherwise cooperate with, or assist any Third Party with respect to an Acquisition Proposal or knowingly in a manner which would or would reasonably be expected to or facilitate the making of any effort Acquisition Proposal by any Third Party, (iii) fail to make, withdraw or attempt modify in a manner adverse to make Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation, recommend, adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) 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, or (v) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement or other similar agreement constituting or relating to an Acquisition Proposal. Any Without limiting the foregoing, it is agreed that any violation of the foregoing restrictions on the Company set forth in this Section by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf Representative of the Company or otherwise, any of its Subsidiaries shall be deemed a breach of this Agreement Section by the Company. The Company shall, and shall cause its Subsidiaries to, and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries shall instruct their respective Representatives to, cease immediately and cause to be terminated terminate any and all existing activities, discussions and or negotiations, if any, with any Persons Third Party conducted prior to the date hereof of this Agreement with respect to any Acquisition Proposal and, to the extent within and shall instruct any such Third Party (or its power, to recover agents or cause to be destroyed all advisors) in possession of confidential information concerning about the Company and its Subsidiaries in the possession that was furnished by or on behalf of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Company Board from complying to return or destroy all such information. The Company shall advise Parent of any Third Party who does not comply with Rule 14d-9 such instructions. During the term of this Agreement, the Company shall not take any actions to make any Takeover Statute (including any Nevada state takeover statute) or Rule 14e-2 under the Exchange Act with respect similar statute inapplicable 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 LawProposal.
(b) Notwithstanding the first sentence of Sections 6.05(aSection 7.3(a), at any time prior to the time Acceptance Time, the Board of acceptance of Shares pursuant Directors, directly or indirectly through advisors, agents or other intermediaries, may, subject to the Offer and compliance with Section 7.3(c), (i) engage in negotiations or discussions with (including, as a part thereof, making any counterproposal or counteroffer to) any Third Party that, subject to the provisions Company’s compliance with Section 7.3(a), has made after the date of this Section 6.05(b) and Section 6.05(c), the Company may negotiate Agreement a Superior Proposal 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 that the Board of the Shares outstanding or fifty percent of the consolidated assets of the Company if (i) a majority of the Company Board Directors determines in good faith, upon the recommendation of the Special Committee faith (after the Special Committee has received considering the advice of Xxxxxxxx Xxxxx or another a financial advisor of nationally recognized financial advisor, that such Acquisition Proposal would reputation and outside legal counsel) could reasonably be expected to result in lead to a Superior Proposal Proposal, (ii) thereafter furnish to such Third Party nonpublic information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as hereinafter definedthe case may be, prior to or substantially concurrently with the time it is provided or made available to such Third Party and (iii) andmake an Adverse Recommendation Change, but in each case referred to in the foregoing clauses (i) through (iii) only if the Board of Directors determines in good faith by a majority vote, after consultation with and considering advice from outside legal counselcounsel to the Company, that the failure to take such action would cause the Company Board to breach be inconsistent with its fiduciary duties under applicable Applicable Law. Nothing contained herein shall prevent the Board of Directors from (x) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) under the 1934 Act or complying with the requirements of Rule 14d-9 under the 1934 Act with regard to an Acquisition Proposal, or (y) disclosing information to the stockholders of the Company to the extent that the Board of Directors determines in good faith, after considering the advice of outside counsel to the Company, that the failure to disclose such information would be inconsistent with its fiduciary duties under Applicable Law, and provided, that such requirement will in no way eliminate or modify the effect that any action pursuant to such requirement would otherwise have under this Agreement.
(iic) such Person executes a confidentiality agreement The Board of Directors shall not take any of the actions referred to in a form no less favorable to clauses (i) through (iii) of Section 7.3(b) unless the Company than shall have delivered to Parent a prior written notice advising Parent that it intends to take such action, and the Confidentiality Agreement. Prior Company shall continue to providing advise Parent after taking such action of the status and terms of any information to or entering into discussions or and negotiations with any Person in connection with an Acquisition Proposal by such Personthe Third Party. In addition, 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 event later than 24 hours) after receipt by the Company (or any of its receipt thereofRepresentatives) of any Acquisition Proposal, any inquiry or expression of interest by a Third Party regarding an Acquisition Proposal or of any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that could reasonably be expected to lead to an Acquisition Proposal, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request (including any changes thereto). The Company shall provide keep Parent with fully informed, on a copy current basis, of the status and material details of any such Acquisition Proposal, indication or request (including any changes thereto) and shall promptly (but in no event later than 24 hours after receipt) provide to Parent copies of all correspondence and written materials sent or provided to the Company or any of its Subsidiaries that describes any terms or conditions of any Acquisition Proposal. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of the Company’s compliance with this Section 7.3(c).
(d) As used in this Agreement, “Superior Proposal” means any bona fide, unsolicited written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on for at least a prompt basis majority of the status outstanding Shares on terms that the Board of Directors determines in good faith by a majority vote, after considering the advice of a financial advisor of nationally recognized reputation and outside legal counsel and taking into account all the terms and conditions of the Acquisition Proposal, would result in a transaction (i) that if consummated, is more favorable to the Company’s stockholders from a financial point of view than as provided hereunder or, if applicable, any discussions or negotiations with such a third party, and any material changes proposal by Parent to amend the terms of this Agreement taking into account all the terms and conditions of such Acquisition Proposalproposal and this Agreement (including the expected timing and likelihood of consummation, taking into account any governmental and other approval requirements), 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (ii) approve or recommendthat is reasonably capable of being completed on the terms proposed, or publicly propose to approve or recommendtaking into account the identity of the person making the proposal, any Acquisition Proposal or approval requirements and all other financial (iii) cause including the Company to enter into any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 financing terms and conditions of such Superior Proposal proposal), legal 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)other aspects of such proposal.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Ixia), Merger Agreement (Catapult Communications Corp)
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit Neither Parent nor any of its Subsidiaries toshall, and nor shall cause its officers, directors and employees, and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it Parent or any of its Subsidiaries not authorize any of its or their Representatives to, directly or indirectly through another Person, (i) solicit, initiate or take any action to knowingly facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) enter into or engage participate in any discussions or negotiations or with, furnish to any Person any information with respect relating to an Acquisition Proposal Parent or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and or afford access to the officersbusiness, directorsproperties, employees assets, books or records of Parent or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activitiesotherwise cooperate in any way with, discussions and negotiationsor knowingly assist, if anyparticipate in, with facilitate or encourage any Persons conducted prior to the date hereof with respect to effort by 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 counselThird Party that has made, is required by applicable Law.
(b) Notwithstanding the first sentence of Sections 6.05(a), prior seeking 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 make 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 make, an Acquisition Proposal, (iii) either fail to make, or withdraw or modify in a Superior manner adverse to the Company or SpinCo, the Parent Board Recommendation, fail to recommend against acceptance of any tender or exchange offer for Parent Common Stock within 10 Business Days after the commencement of such offer or approve, resolve to approve, adopt or recommend, or propose publicly to approve, resolve to approve, adopt or recommend, any Acquisition Proposal (as hereinafter definedany of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) andeither 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 and advice from outside legal counsel, that the failure to take such action would cause the Company Board to breach be inconsistent with its fiduciary duties under applicable 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 similar instrument relating to an Acquisition Proposal or consummate any Acquisition Proposal. It is agreed that any violation 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), at any time prior to the receipt of the Parent Stockholder Approval:
(i) Parent, directly or 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 the Parent Board reasonably determines is or would reasonably be expected to lead to a Superior Proposal and (iiB) furnish to such Person executes 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 a form good faith are no less favorable to the Company Parent than those contained in the Confidentiality Agreement. Prior Agreement and that include standstill obligations that Parent reasonably determines are customary and expressly allow Parent to providing any comply with its obligations under this Section 7.04; provided that all such 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 extent that such Acquisition Proposal, and shall promptly give Parent a copy of any information delivered to such Person which has not been previously been provided or made available to Parent. The Company shall not waive any standstill the Company) is provided or confidentiality provisions contained in agreements made available to which 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 party Superior Proposal or (B) in response to which an Intervening Event, in each case referred to in the Company is subject unless foregoing clauses (i) and (ii) only if the Company Parent Board determines in good faithdetermines, upon the recommendation of the Special Committee after consultation by the Special Committee with and advice from its outside legal counselcounsel and its financial advisor, that the failure to take such action would cause the Company Board to breach be inconsistent with its fiduciary duties under applicable 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 Proposal so long as any action taken or statement made to so comply is consistent with this Section 7.04; 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 in connection with such action.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither Parent shall advise the Company Board nor on a prompt basis of the status and terms of any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, its recommendation to its stockholders discussions and negotiations referred to in Section 1.02 hereof7.04(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 take any action not explicitly permitted by this Agreement that would be inconsistent with of its approval Representatives) of the Offer and the Merger, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause any request for information relating to Parent or any of its Subsidiaries or for access to the business, properties, assets, books or records of Parent 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. Parent shall provide such notice orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such 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 (but in no event later than the next Business Day after receipt) provide to enter into the Company copies of all correspondence and written materials sent or provided to Parent or any letter of intent, agreement in principle, acquisition agreement, commitment its Subsidiaries or similar agreement related 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. Notwithstanding the foregoing, prior Proposal will be deemed to the time be a new Acquisition Proposal for purposes of acceptance of the Shares for payment pursuant to the OfferParent’s compliance with this Section 7.04(c).
(d) Further, the Company Parent Board shall be permitted not make an Adverse Recommendation Change, unless (i) not if such Adverse Recommendation Change is to recommend be taken in circumstances involving or relating to its stockholders 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 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 Acquisition Proposal, but only if in each case (x) the Company has received an such Acquisition Proposal which the Company Board determines in good faith, upon the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (yii) Parent promptly provides written 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 action intended to be taken in circumstances involving an Acquisition Proposal, the material terms of such Acquisition Proposal, including the most current version of the proposed agreement under which such Acquisition Proposal is proposed to be consummated and the identity of the 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 action, and (iii) the Company Board determines in good faithdoes not make, 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 (z) after within five Business Days have elapsed 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 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 (x) the expiration of the original five Business Day notice period and (y) three Business Days following such new written notification) or (B) in the Company's delivery 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 written notice advising a subsequent revised Acquisition Proposal), Parent that and its Representatives shall negotiate in good faith with 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 its Representatives regarding any revisions proposed by the Company shall not enter into an agreement with respect to a Superior Proposal unless the Company shall terminate terms of the transactions contemplated by this Agreement in accordance with Section 8.01(c)(ii)Agreement.
(de) 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 consummation (and expected timing of consummation relative to the 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 in part), is then fully committed or reasonably determined to be available by the Parent Board.
Appears in 2 contracts
Samples: Merger Agreement (Transportation Systems Holdings Inc.), Merger Agreement (Westinghouse Air Brake Technologies Corp)
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit any of its Subsidiaries Subsidiary to, and shall cause use its best efforts to ensure that its officers, directors and or employees, and or any investment bankers, consultants, financial advisors, accountants, agents consultants or other representatives agents retained by it or any of its Subsidiaries not toSubsidiary to not, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defineddefined below) 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. Any violation The Company will notify Buyer within 48 hours of receipt by the foregoing restrictions Company or any Subsidiary of any Acquisition Proposal or any request for nonpublic information relating to the Company or any Subsidiary by any Person who, to the knowledge of the Company's representatives, whether is making or not considering making or who has made, an Acquisition Proposal. The Company shall provide such representative is so authorized notice orally and whether in writing including the terms and conditions of any such Acquisition Proposal or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyrequest. The Company shall, and shall cause its the Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives of the Company and its the 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisorsProposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule 14d-9 or Rule 14e-2 applicable rules and regulations under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company's stockholders thatif, in the good faith judgment of the a majority of the disinterested members of the Company Board, upon recommendation Board of Directors of the Special Committee Company after consultation with and advice 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 required by applicable Lawa member of the Board of Directors who is not an "interested director" as defined under DGCL.
(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)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 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 if the Company if (i) has complied with the terms of this Section 4.5, a majority of the disinterested members of the Board of Directors of the Company Board reasonably 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, faith that such Acquisition Proposal would could 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 receipt of 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 opinion from its outside legal counsel, that the failure to take such action would cause the Company Board could reasonably be deemed to breach be inconsistent with its fiduciary duties under applicable Lawlaw, and such person executes a confidentiality agreement in customary form (including standstill provisions).
(c) Except as permitted by the second sentence of this Section 6.05(cSubsection 4.5(c), neither the Board of Directors of the Company Board nor any committee thereof shall (i) 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 hereofBuyer, or take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of the Offer and the MergerTransactions, (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, commitment agreement or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time The Board of acceptance Directors of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of the Offer Transactions and/or approval and adoption of this Agreement and the MergerAgreement, (ii) to withdraw, or modify in a manner adverse to ParentBuyer, its recommendation to its stockholders referred to in Section 1.02 1.1 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 complied with the Company Board determines in good faith, upon the recommendation terms of a nationally recognized financial advisor, constitutes a Superior Proposalthis Section 4.5, (y) the Company has received an unsolicited Acquisition Proposal which a majority of the disinterested members of the Board of Directors determines in good faith constitutes a Superior Proposal, and (z) a majority of the disinterested members of the Board of Directors of the Company determines in good faith, upon the recommendation after receipt of the Special Committee after consultation by the Special Committee with and advice a written opinion from its outside legal counsel, that the failure to take such action would cause the Company Board could reasonably be deemed to breach be inconsistent with 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)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 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 (aprovided 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 not permit any cause each of its 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 respective Representatives not to, directly or indirectly: (i) solicit, initiate 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 submission 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; (as hereinafter definediii) or engage in discussions or negotiations or furnish to any Person other than to each other any information with respect 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 knowingly facilitate take any effort other action regarding any inquiry, expression of interest, proposal or attempt offer that constitutes, or would reasonably be expected to make lead to, an Acquisition Proposal. Any violation ; (iv) accept any Acquisition Proposal or enter into any agreement, arrangement or understanding (whether written or oral) providing for the consummation of the foregoing restrictions 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 Company's representativesPurchaser 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), whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause each of its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries respective Representatives to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement 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 (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 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 each written communication and a party or to which the Company is subject unless the Company Board determines in good faith, upon the recommendation complete summary of each other communication transmitted on behalf 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor Other Interested Party or any committee thereof shall (i) 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, (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, commitment or similar agreement related Other Interested Party’s Representatives to any Acquisition Proposal. Notwithstanding the foregoing, prior of them or transmitted on behalf of any of them to the time of acceptance Other Interested Party or any of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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)Other Interested Party’s Representatives.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Share Purchase Agreement (Sapiens International Corp N V), Share Purchase Agreement (Kardan Technologies Ltd.)
No Solicitation; Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall, nor shall notthe Company or any of its Subsidiaries authorize or permit any of its or their officers, and shall not permit directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (together, “Representatives”) to, subject to Section 7.04(b):
(i) enter into or participate in any discussions or negotiations regarding an Acquisition Proposal with, or in connection with an Acquisition Proposal furnish any nonpublic 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, and shall cause its officersotherwise cooperate in any way with, directors and employeesor knowingly assist, and participate in, facilitate or encourage any investment bankerseffort by, consultantsany Third Party that such Person reasonably believes may be seeking to make, financial advisorsor has made, accountantsan Acquisition Proposal or has made any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal,
(ii) fail to make, agents withdraw or other representatives retained by it modify in a manner adverse to Parent the Board Recommendation (or recommend an Acquisition Proposal) (any of the foregoing in this clause (ii), an “Adverse Recommendation Change”),
(iii) 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 Subsidiaries,
(iv) enter into any letter of intent, contract or similar document contemplating or otherwise relating to any Acquisition Proposal; or
(v) enter into or participate in any discussions or negotiations regarding any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Offer or Merger or that could reasonably be expected to dilute materially the benefits of Parent of the transactions contemplated hereby. The Company shall instruct, and cause each applicable Subsidiary, if any, to instruct, each such Representative who has been retained or requested by the Company or any such Subsidiary to perform services in connection with this Agreement not to, directly or indirectly, solicit, initiate or take any action knowingly to facilitate or encourage the submission of any Acquisition Proposal Proposal.
(as hereinafter definedb) 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. Any violation of Notwithstanding the foregoing restrictions by any of the Company's representativesforegoing, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company Board, directly or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial indirectly through advisors, agents or other representatives of intermediaries, may:
(i) engage in negotiations or discussions with any Third Party that, subject to the Company’s compliance with Section 7.04(a), has made (and not withdrawn) a bona fide Acquisition Proposal in writing that the Company and Board in good faith believes is or is reasonably likely to lead to a Superior Proposal,
(ii) thereafter furnish to such Third Party information relating to the Company or any of its Subsidiaries to, cease immediately and cause pursuant to be terminated all activities, discussions and negotiations, if any, a confidentiality agreement with any Persons conducted prior terms no less favorable to the date hereof Company than those contained in the Confidentiality Agreement and that permit the Company to comply with respect the terms of this Section 7.04 (a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to any Acquisition Proposal and, Parent),
(iii) to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries Board determines in good faith by a majority vote, after considering advice from outside legal counsel to the Company, that it is so required by the Company Board’s fiduciary duties under Applicable Law, make an Adverse Recommendation Change, and/or
(iv) take any non-appealable, final action that any court of competent jurisdiction orders the Company to take, but in each case referred to in the possession foregoing clauses (i) through (ii) only if the Company Board determines in good faith by a majority vote, after considering advice from outside legal counsel to the Company, that failure to take such actions would be inconsistent with its fiduciary duties under Applicable Law. For purposes of clause (i) of this Section 7.04(b), the term “Acquisition Proposal” shall have the meaning ascribed to such term in Article 1, except that references to “20%” or “80%” in clauses (i) through (iv) of such Persons and their affiliates, representatives and advisorsdefinition shall be replaced with “50%”. Nothing contained in this Agreement shall prevent the Company Board from complying with Rule 14e-2(a) or 14d-9 or Rule 14e-2 under the Exchange 1934 Act with respect regard to any an 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 LawProposal.
(bc) 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 The Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, Board shall not take 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 actions referred to in clauses (i) a majority through (iii) of the preceding subsection unless 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, shall have delivered to Parent a prior written notice advising Parent 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 it intends to take such action. In the case of any action would cause referred to in clause (iii) in which neither the Company Board nor any of its advisors has received any Acquisition Proposal, such notice shall be given to breach its fiduciary duties under applicable Law, and (ii) Parent at least 48 hours before taking such Person executes a confidentiality agreement in a form no less favorable to the Company than the Confidentiality Agreementaction. Prior to providing any information to or entering into discussions or negotiations with any Person in connection with an Acquisition Proposal by such PersonIn addition, 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 event later than 24 48 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) withdraw receipt by the Company (or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, any of its recommendation to its stockholders referred to in Section 1.02 hereof, or take advisors) of any action not explicitly permitted by this Agreement that would be inconsistent with its approval of the Offer and the MergerAcquisition Proposal, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause receipt by the Company to enter into of any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to indication that any Third Party is considering making an Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 stockholders referred to in Section 1.02 hereof, (iii) any request for nonpublic information relating to approve the Company or recommend any Superior of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that the Company reasonably believes may be considering making, or has made, an Acquisition Proposal or (iv) to terminate this Agreement any breach of the obligations of the Company and its Subsidiaries set forth in accordance with Section 8.01(c)(ii) hereof 7.04(a). The Company shall provide such notice orally 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) the Company Board determines in good faith, upon the recommendation of the Special Committee after consultation by the Special Committee with writing 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 shall identify the material terms and conditions of any such Superior Proposal Acquisition Proposal, indication, request or breach. The Company shall keep Parent fully informed, on a reasonably current basis, of the status and identifying details of any such Acquisition Proposal, indication or request.
(d) In addition, the Person Company Board shall not make an Adverse Recommendation Change in connection with an Acquisition Proposal, unless:
(i) the Company notifies Parent, in writing, at least three Business Days before making an Adverse Recommendation Change, of its intention to take such action, attaching the Superior most current version of such proposed agreement or a detailed summary of all material terms of any such proposal and the identity of the Third Party making such Acquisition Proposal; provided,
(ii) the Company shall have, howeverduring such three Business Day period, negotiated in good faith with Parent with respect to any changes to this Agreement that Parent shall have proposed, and
(iii) Parent does not make, within such three Business Day period, an offer that the Company Board determines is at least as favorable to the stockholders of the Company from a financial point of view as the transaction set forth in the Company’s written notice delivered pursuant to clause (i) above, it being understood that the Company shall not enter into any such binding agreement during such three Business Day period. The Company shall promptly notify Parent if its intention to make an agreement Adverse Recommendation Change with respect to a Superior Acquisition Proposal unless the Company shall terminate this Agreement change at any time after giving a notice referred to in accordance with Section 8.01(c)(ii)clause (i) above.
(de) For purposes The Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause the advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, with any Third Party conducted prior to the date of this Agreement:Agreement with respect to any Acquisition Proposal. The Company shall use its reasonable best efforts to enforce the terms and conditions of any confidentiality agreement entered into with such Third Party with respect to any Acquisition Proposal and to cause any such Third Party (or its agents or advisors) in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information. The Company agrees that it will use its reasonable best efforts to promptly inform its directors, officers, key employees, investment bankers, attorneys, accountants, consultants and other agents and advisors of the obligations undertaken in this Section 7.04.
Appears in 2 contracts
Samples: Merger Agreement (Kla Tencor Corp), Merger Agreement (Therma Wave Inc)
No Solicitation; Other Offers. (a) The Subject to Section 6.02(b), until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company shall not, and shall not permit nor any of its Subsidiaries toshall, and nor shall cause its officers, directors and employees, and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it the Company or any of its Subsidiaries not authorize or knowingly permit any of its or their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants or other advisors or representatives (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) enter into or engage participate in any discussions or negotiations or with, furnish to any Person any information with respect 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 knowingly cooperate in any way with, any Third Party, in each case, relating to an Acquisition Proposal or knowingly facilitate any effort inquiry, proposal or attempt request that would reasonably be expected to make lead to an Acquisition Proposal. Any violation , (iii) (A) fail to make, withdraw, qualify or modify, or propose publicly to withhold, withdraw, qualify or modify, the Company Board Recommendation (or recommend an Acquisition Proposal), (B) fail to publicly recommend against any publicly disclosed Acquisition Proposal (other than a tender offer or exchange offer) within ten (10) Business Days after Parent so requests in writing, or (C) fail to publicly recommend against any Acquisition Proposal structured as a tender offer or exchange offer within ten (10) Business Days after the commencement thereof or take any public supportive position in connection with a tender or exchange offer (any of the foregoing restrictions by in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any waiver or amendment or release under any standstill or confidentiality agreement; provided that the foregoing clause (iv) shall not prohibit the Company or any of its Subsidiaries from amending, modifying or granting any waiver or release under any standstill, confidentiality or similar agreement of the Company's representativesCompany or any of its Subsidiaries or (v) enter into any agreement in principle, whether letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or not other similar instrument relating to an Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (any such representative is so authorized agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal, an “Alternative Acquisition Agreement”) (or announce any intention to do so). Subject to Section 6.02(b), the Company shall, and whether shall use its reasonable best efforts to cause its Subsidiaries and its and their Representatives to, promptly cease and cause to be terminated any and all existing discussions or not negotiations in effect as of the date hereof, if any, with any Third Party and its Representatives with respect to any Acquisition Proposal. The Company shall promptly (and in any event within five (5) Business Days of the date hereof) request that each Third Party that has executed a confidentiality agreement within the 24-month period prior to the date hereof in connection with its consideration of any Acquisition Proposal return or destroy all confidential information pursuant to such representative is purporting confidentiality agreement heretofore furnished to act such Person by or on behalf of the Company or otherwiseany of its Subsidiaries, and the Company shall confirm to Parent the receipt of all certifications of such return or destruction from such other Persons as promptly as practicable after such receipt thereof. The Company shall use its reasonable best efforts to secure all such certifications as promptly as practicable.
(b) In addition, nothing contained herein shall prevent the Company or the Board of Directors of the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer) or from making any legally required disclosure to stockholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal (provided that neither the Company nor its Board of Directors may make an Adverse Recommendation Change) or (ii) issuing a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act.
(c) The Company shall notify Parent promptly (and in any event within 24 hours) after receipt by the Company (or any of its Representatives) of any Acquisition Proposal, or any request for non-public information relating to the Company or any of its Subsidiaries or for access to the personnel, business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party, in each case, that would reasonably be expected to make, or has made, an Acquisition Proposal, which notice shall include the material terms and conditions of any such Acquisition Proposal or request, the identity of the Third Party making such Acquisition Proposal and unredacted copies of the Acquisition Proposal and all related documents (including all financing commitments and other documents relating to any financing), and if such Acquisition Proposal or any portion thereof was not provided in writing, a summary of the material terms and conditions thereof.
(d) Any breach of this Section 6.02 by any director, officer or Representative of the Company or any of its Subsidiaries will be deemed to be a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
No Solicitation; Other Offers. (a) The From the date hereof until the termination hereof, the Company shall will not, and shall will cause its Subsidiaries and will use reasonable best efforts to cause the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its Subsidiaries not permit to, directly or indirectly, (i) take any action to solicit or initiate the submission of any Acquisition Proposal or (ii) engage in discussions or negotiations with, or disclose any nonpublic information relating to the Company or any of its Subsidiaries to, and shall cause its officersany Person who, directors and employeesto the knowledge of the Company, is considering making, or has made, an Acquisition Proposal; PROVIDED that the Company may negotiate or otherwise engage in discussions with, and furnish nonpublic information to, any investment bankersPerson in response to an unsolicited Acquisition Proposal if (w) the Company has complied with the terms of Section 6.03(b), consultants(x) the Board of Directors of the Company determines in good faith that, financial advisorsbased on the terms and conditions contained in such Acquisition Proposal, accountantssuch Acquisition Proposal could reasonably be expected to constitute a Superior Proposal, agents (y) prior to providing any information or other representatives retained data to any Person in connection with an Acquisition Proposal, such Person executes a confidentiality agreement with terms substantially similar to those contained in the Confidentiality Agreement (except as to the standstill provisions, PROVIDED that if the Company so enters into any such confidentiality agreement without standstill provisions substantially similar to those in the Confidentiality Agreement, then Parent shall to the extent of such difference be relieved of compliance with the Confidentiality Agreement's standstill obligations) and (z) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action.
(b) The Company will notify Parent promptly after receipt by it the Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries not to, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) or engage in discussions or negotiations or furnish to by any Person any information with respect who, to an Acquisition Proposal the knowledge of the Company, is making, or knowingly facilitate any effort or attempt to make has made, an Acquisition Proposal. Any violation 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, indication or request. The Company shall keep Parent informed of the foregoing restrictions by status and details of any of the Company's representativessuch Acquisition Proposal, whether indication or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyrequest. The Company shall, and shall cause its Subsidiaries and use reasonable best efforts to cause the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 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 LawProposal.
(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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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:
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No Solicitation; Other Offers. (a) The Subject to Section 6.6(b), the Company shall not, and shall not authorize or permit any of its the 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 or their Representatives to, directly or indirectly, (i) solicit, initiate initiate, knowingly facilitate or knowingly encourage the submission of any an Acquisition Proposal from a Person or Group (as hereinafter definedother than the Buyer, the Buyer Subsidiary or any of their Affiliates), (ii) engage or engage participate in discussions or negotiations with, furnish non-public information relating to the Company or furnish any Subsidiary to, or provide access to the non-public Company Business Records to any Person or Group (other than the Buyer, the Buyer Subsidiary or any information of their Affiliates) that has submitted, or has informed the Company that it is seeking to submit, an Acquisition Proposal, (iii) enter into a Contract or letter of intent (except for a confidentiality agreement described in Section 6.6(b)) with any Person or Group (other than the Buyer, the Buyer Subsidiary or any of their Affiliates) that has submitted, or has informed the Company that it is seeking to submit, an Acquisition Proposal (A) with respect to an Acquisition Proposal or knowingly facilitate any effort (B) requiring it to abandon, terminate or attempt fail to make an Acquisition Proposal. Any violation of consummate the foregoing restrictions by Merger or any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyother transactions contemplated hereby. The Company shallCompany, and shall cause its the Subsidiaries and the officers, directors, employees or their Representatives will immediately cease any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, or negotiations with any Persons Third Parties conducted prior to the date hereof heretofore 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 advisorsProposal. 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 As promptly as practicable (but in no case later event more than 24 48 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments any request for nonpublic information or supplements theretoinquiry which it reasonably believes would lead to an Acquisition Proposal, the Company shall provide Buyer oral and shall thereafter inform Parent on a prompt basis written notice 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, request or inquiry, and shall promptly give Parent the identity of the Person or Group making any such Acquisition Proposal, request or inquiry and a copy of any information delivered all written materials provided in connection with such Acquisition Proposal, request or inquiry.
(b) Notwithstanding anything contained herein to such Person which the contrary, the Company (through one or more of its Representatives) or the Board of Directors of the Company may, prior to the Company Stockholder Approval, but only to the extent that the Company has not previously been provided breached its obligations under clause (i) of Section 6.6(a), (i) engage or made available to Parent. The Company shall not waive participate in discussions or negotiations with any standstill Person or confidentiality provisions contained in agreements to which Group (or with the Representatives of any Third Party) that has submitted, or has informed the Company that it is seeking to submit, an Acquisition Proposal that was not solicited in violation of Section 6.6(a) and constitutes or could reasonably be expected to lead to a party Superior Proposal (which Person or Group is called a "Qualified Third Party"), (ii) furnish non-public information relating to which the Company is subject unless or any Subsidiary and provide access to the Company Business Records and the Real Property to any Qualified Third Party or its Representatives pursuant to an executed confidentiality agreement containing customary nondisclosure provisions, (iii) withdraw 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 Recommendation or modify the Company Board to breach its fiduciary duties under applicable Law.
Recommendation in any manner (c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in including a manner adverse to Parentthe Buyer and the Buyer Subsidiary), its recommendation to its stockholders referred to in Section 1.02 hereof, or (iv) take any action not explicitly permitted by this Agreement that would be inconsistent with its approval in respect of the Offer and the Merger, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause matters described in Section 9.2 which the Company to enter into any letter or the Board of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance Directors of the Shares for payment pursuant to the Offer, Company in good faith determines is necessary or appropriate so that the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of would have 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 stockholders referred to in Section 1.02 hereof, (iii) to approve or recommend any Superior Proposal or (iv) right to terminate this Agreement in accordance with Sections 9.1(j) and 9.2, (v) terminate this Agreement pursuant and subject to Section 8.01(c)(ii9.1(j), (vi) hereof and in connection therewith enter into an agreement with respect to such Superior Proposaltake any action that any court of competent jurisdiction orders the Company, but only if in each case (x) one or more of the Representatives of the Company has received an Acquisition Proposal or the Board of Directors of the Company to take, (vii) take any action in respect of the Information Statement, the Company Stockholder Approval or the other matters described in this Article 6 which the Company or the Board determines of Directors of the Company in good faith, upon faith determines is necessary or appropriate by reason of the recommendation occurrence of a nationally recognized financial advisor, constitutes a Superior Proposalany action described in the preceding clause (iii), (yiv), (v) the Company Board determines in good faithor (vi), 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 (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:or
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No Solicitation; Other Offers. (a) The From the date hereof until the acceptance for payment by Merger Subsidiary of the Shares tendered into the Offer or the earlier termination hereof, the Company shall will not, and shall will cause its Subsidiaries and the officers, directors, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its Subsidiaries not permit to (i) take any action (y) to solicit or (z) for the primary purpose of initiating or encouraging the submission of any Acquisition Proposal, (ii) engage in substantive discussions or negotiations with, or disclose any material 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, and shall cause any Person who the Company should reasonably be expected to know is considering making, or has made, an Acquisition Proposal or (iii) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other Person, in each case, for the primary purpose of making any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Offer, the Merger or any other transaction contemplated by this Agreement. The Company will notify Parent promptly after receipt by the Company (or any of its officersadvisors) of any Acquisition Proposal, directors and employees, and or any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it request for nonpublic information relating to the Company or any of its Subsidiaries not toor for access to the properties, solicit, initiate books or encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf records of the Company or otherwiseany of its Subsidiaries by any Person who the Company should reasonably be expected to know is considering making, shall be deemed a breach of this Agreement by the Companyor has made, an Acquisition Proposal. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, officers and other agents or other representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, negotiations 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisorsProposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange 1934 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 LawProposal.
(b) Notwithstanding the first sentence of Sections 6.05(a)foregoing, prior to the time acceptance for payment by Merger Subsidiary of acceptance of the Shares pursuant to tendered in the Offer and subject to the provisions of this Section 6.05(b) and Section 6.05(c), the Company may may, if it gives Parent notice of its intention to do so, negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to who delivers an unsolicited bona fide written Acquisition Superior 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 faithhas complied with the terms of this Section 7.04, 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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:requirement
Appears in 1 contract
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit any of its 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, solicit, initiate or encourage the submission of any Acquisition Proposal (Except as hereinafter definedprovided in this Section 5.15(a) 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. Any violation of Section 5.15(b), from and after the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach date of this Agreement by until the Company. The earlier of the Effective Time and the termination of this Agreement pursuant to Article VII, the Company (i) shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives respective Representatives of the Company and its Subsidiaries to, immediately cease immediately and cause to be terminated all activitiesany discussions or negotiations with any Person conducted heretofore with respect to an Acquisition Proposal, (ii) shall not, and it shall cause its Subsidiaries and their respective Representatives not to, (A) solicit, initiate or knowingly take any action designed to facilitate the submission of any Acquisition Proposal, (B) engage in any discussions or negotiations with, or furnish any nonpublic information relating to the Company or any of its Subsidiaries to, any Third Party that to the knowledge of the Company is seeking to make, or has made, an Acquisition Proposal, or (C) enter into any agreement with respect to any Acquisition Proposal; provided, however, that nothing contained in this Section 5.15 or any other provision of this Agreement shall prohibit the Company or the Company Board, directly or indirectly through advisors, agents or other intermediaries, from (1) taking and disclosing to the Stockholders a position with respect to a tender or exchange offer by a Third Party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (2) making any disclosure to the Stockholders, if, based on advice from outside counsel, the Company Board determines in good faith that failing to do so would be reasonably likely to violate its fiduciary duty under applicable Laws. Notwithstanding the foregoing, prior to obtaining the Company Stockholder Approval, the Company or the Company Board, directly or indirectly through advisors, agents or other intermediaries, may furnish information concerning the businesses, properties or assets of the Company or any of its Subsidiaries to any Person or group including furnishing nonpublic information pursuant to an appropriate confidentiality agreement (provided that such confidentiality agreement is not more favorable to such person than the Confidentiality Agreement and the same nonpublic information has been or is simultaneously provided to Parent), and may engage in discussions and negotiationsnegotiations with such Person or group concerning an Acquisition if, if anyand only if: (x) such Person or group has, with after the date hereof, submitted an unsolicited Acquisition Proposal which the Company Board determines in good faith is reasonably likely to result in a Superior Proposal, or (y) the Company Board determines in good faith, based upon advice of outside counsel, that failing to do so would be reasonably likely to violate the Company Board’s fiduciary duties to the Stockholders under applicable Law. The Company shall promptly notify Parent of the material terms of any Persons conducted prior to proposal or inquiry received by the Company from a Third Party after 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 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 LawProposal.
(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 Except as set forth in 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.
(c) Except as permitted by the second sentence of this Section 6.05(c5.15(b), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to ParentParent or Merger Sub, its the approval or recommendation to its stockholders referred to in Section 1.02 hereof, by the Company Board or take any action not explicitly permitted by such committee of this Agreement that would be inconsistent with its approval of or the Offer and the Mergertransactions contemplated hereby, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal Proposal, or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related with respect to any Acquisition ProposalProposal (any action described in clauses (i), (ii) or (iii) being referred to as a “Company Recommendation Change”). Notwithstanding the foregoing, prior anything in this Agreement to the time of acceptance of the Shares for payment pursuant to the Offercontrary, the Company Board may make a Company Recommendation Change if (A) the Company shall be permitted (i) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii) to withdraw, or modify in have received 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 (xB) the Company has received an Acquisition Proposal which the Company Board determines shall have determined in good faith, based upon the recommendation advice of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 failing to take such action would cause be reasonably likely to constitute a breach of the Company Board to breach its Board’s fiduciary duties to the Stockholders under applicable Law and Law; provided, however, that no Company Recommendation Change may be made in response to a Superior Proposal until after the third (z3rd) after five Business Days have elapsed Day following the Company's delivery to Parent Parent’s receipt of written notice (unless at the time such notice is otherwise required to be given there are less than three (3) Business Days prior to the Stockholders’ Meeting, in which case the Company shall provide as much notice as is reasonably practicable) from the Company (a “Company Recommendation Change Notice”) advising Parent that the Board of Directors of the Company Board has received a Superior Proposal intends to make such Company Recommendation Change and specifying the material terms and conditions of such Superior Proposal (it being understood and identifying agreed that any amendment to the Person making the financial terms or other material terms of such Superior Proposal; provided, howeverwhich is adverse to the Company, that shall require a new Company Recommendation Change Notice and a new three (3) Business Day period (unless at the time such notice is otherwise required to be given there are less than three (3) Business Days prior to the Stockholders’ Meeting, in which case the Company shall not enter into an agreement with respect provide as much notice as is reasonably practicable)). In determining whether to make a Company Recommendation Change in response to a Superior Proposal unless Proposal, the Company Board shall terminate take into account any changes to the terms of this Agreement proposed by Parent (in accordance with Section 8.01(c)(ii)response to a Company Recommendation Change Notice or otherwise) in determining whether such third party Acquisition Proposal still constitutes a Superior Proposal.
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, subject to Section 6.03(b), Section 6.03(c) and Section 6.03(e), the Company shall not, and shall cause its Subsidiaries not permit to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, intermediaries and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate (it being understood and agreed that ministerial acts that are not otherwise prohibited by this Section 6.03 (such as answering unsolicited phone calls) shall not be deemed to “facilitate” for purposes of this Section 6.03(a)) or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish 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, and otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal or (iii) (A) withdraw (or modify in a manner adverse to Parent) the Company Board Recommendation (it being understood that failure to issue a press release that reaffirms the Company Board Recommendation within five Business Days of the date any Acquisition Proposal or any material modification thereto is publicly disclosed shall cause its officersbe considered an adverse modification), directors and employees(B) fail to include the Company Board Recommendation in the Company Proxy Statement or (C) recommend, and adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal (any investment bankersof the foregoing in this clause (iii), consultantsan “Adverse Recommendation Change”) or (iv) approve any transaction under, financial advisorsor any Person becoming an “interested stockholder” under, accountantsSection 203 of the Delaware Law. Without limiting the generality of the foregoing, agents or other representatives retained it is agreed that any violation of the restrictions on the Company set forth in the preceding sentence by it any Representative of the Company or any of its Subsidiaries not to, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement Section by the Company. The Company shall, (it being understood and agreed that any such violation shall cause its Subsidiaries and be determined as if such Representative is bound by the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives terms 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 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 LawSection 6.03(a)).
(b) Notwithstanding the first sentence of Sections 6.05(a)foregoing, at any time prior to the time of acceptance of Shares pursuant to the Offer approval and subject to the provisions adoption of this Section 6.05(b) Agreement by the Company’s stockholders (and Section 6.05(cin no event after the approval and adoption of this Agreement by the Company’s stockholders), the Company Board of Directors of the Company, directly or indirectly through its Representatives may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, (x) contact any Person in response to Third Party that has made after the date of this Agreement an unsolicited bona fide written Acquisition Proposal by such Person in order to acquire in any manner at least fifty percent ascertain facts or clarify terms for the sole purpose of the Shares outstanding or fifty percent Board of the consolidated assets Directors of the Company if informing itself about such Acquisition Proposal and such Third Party and (y) subject to compliance with this Section 6.03(b), Section 6.03(c) and Section 6.03(e), (i) engage in negotiations or discussions with any Third Party that, subject to the Company’s compliance with Section 6.03(a), has made after the date of this Agreement a majority Superior Proposal or an unsolicited bona fide written Acquisition Proposal that the Board of Directors of the Company Board determines in good faith, upon after consultation with its financial advisor and outside legal counsel, is reasonably likely to lead to a Superior Proposal, (ii) thereafter furnish to such Third Party and its Representatives and financing sources nonpublic information relating to the recommendation Company or any of its Subsidiaries pursuant to a confidentiality agreement (which confidentiality agreement shall not include any provision requiring exclusive negotiations with such Third Party) with confidentiality terms no less favorable to the Special Committee Company than those contained in the Confidentiality Agreement, a copy of which shall be provided, promptly after its execution, to Parent for informational purposes; provided that all such non-public information (to the Special Committee has received the advice of Xxxxxxxx Xxxxx or another nationally recognized financial advisor, extent that such Acquisition Proposal would reasonably be expected information has not been previously provided or made available to result in Parent) is provided or made available to Parent, as the case may be, promptly (but no later than one Business Day) after or substantially concurrently with the time it is provided or made available to such Third Party) and (iii) following receipt of a Superior Proposal after the date of this Agreement, (1) make an Adverse Recommendation Change and/or (2) terminate this Agreement to enter into a definitive agreement providing for such Superior Proposal (provided that the Company may not terminate this Agreement pursuant to the foregoing clause (2), and any purported termination pursuant to the foregoing clause (2) shall be void and of no force or effect, unless in advance of or concurrently with such termination the Company pays the Termination Fee in accordance with Section 10.03(d)), but in each case referred to in the foregoing clauses (i) through (iii) only if the Board of Directors of the Company determines in good faith after consultation with outside legal counsel to the Company, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law. Nothing contained herein shall prevent the Board of Directors of the Company from (x) complying with Rule 14e -2(a) under the 1934 Act with regard to an Acquisition Proposal, so long as hereinafter definedany action taken or statement made to so comply is consistent with this Section 6.03, provided that (subject to the following sentence) andany such action taken or statement made that involves or relates to an Acquisition Proposal shall be deemed to be an Adverse Recommendation Change unless the Board of Directors of the Company reaffirms the Company Board Recommendation in such statement or in connection with such action; or (y) making any required disclosure to the stockholders of the Company if 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 cause the Company Board be reasonably likely to breach its fiduciary duties under applicable be inconsistent with Applicable Law, and (ii) such Person executes a confidentiality agreement in a form no less favorable provided that any Adverse Recommendation Change involving or relating 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 may only be made in accordance with the provisions of Section 6.03(b), Section 6.03(c) and Section 6.03(e) . For the avoidance of doubt, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act shall not be an Adverse Recommendation Change.
(c) In addition to the requirements set forth in Section 6.03(b), the Board of Directors of the Company shall not take any of the actions referred to in clauses (i) through (iii) of Section 6.03(b) unless the Company shall have first delivered to Parent written notice advising Parent that it intends to take such Personaction, and the Company shall continue to advise Parent, on a current basis, after taking such action of the status and material terms of any discussions and negotiations with the applicable Third Party. In addition, 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 event later than 24 hours) after receipt by the Company (or any of its receipt thereof, and shall provide Parent with a copy Representatives) of any written Acquisition Proposal, any indication that a Third Party is considering making an Acquisition Proposal or amendments any request for information relating to the Company or supplements theretoany of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that may be considering making, or has made, an Acquisition Proposal, which notice shall be provided orally and in writing and shall identify the Third Party making, 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 of, any such Acquisition Proposal, and shall promptly give Parent a copy of indication or request (including any information delivered to such Person which has not previously been provided or made available to Parentmaterial changes thereto). The Company shall not waive keep Parent fully informed, on a current basis, of the status and details of any standstill such Acquisition Proposal, indication or confidentiality provisions contained request (including any changes thereto) and shall promptly (but in agreements no event later than 24 hours after receipt) provide to which Parent copies of all material correspondence and written materials sent or provided to the Company is a party or any of its Subsidiaries that describes any terms or conditions of any Acquisition Proposal (as well as written summaries of any material oral communications addressing such matters).
(d) Notwithstanding anything in this Agreement to which the contrary, at any time prior to the approval and adoption of this Agreement by the Company’s stockholders (and in no event after the approval and adoption of this Agreement by the Company’s stockholders), the Board of Directors of the Company is subject unless may effect an Adverse Recommendation Change involving or relating to an Intervening Event if the Board of Directors of 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 be reasonably likely to breach be inconsistent with its fiduciary duties under applicable Applicable Law.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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 ; provided 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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 shall (A) promptly notify Parent in writing of its intention to take such action and (B) negotiate in good faith with Parent for two Business Days following such notice regarding revisions to the terms of this Agreement proposed by Parent and (y) the Board of Directors of the Company shall not effect any Adverse Recommendation Change involving or relating to an Intervening Event unless, after the two Business Day period described in the foregoing clause (B), the Board of Directors of the Company determines in good faith, upon the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 be reasonably likely to breach be inconsistent with its fiduciary duties under applicable Law and (z) after five Business Days have elapsed following to the Company's delivery to Parent stockholders of written notice advising Parent that the Company under Applicable Law.
(e) Without limiting or affecting Section 6.03(a), Section 6.03(b) or Section 6.03(c), the 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 Directors of the Company shall not make an Adverse Recommendation Change involving or relating to a Superior Proposal or terminate this Agreement in order to enter into an a definitive agreement with respect to a Superior Proposal unless (i) the Company promptly notifies Parent, in writing at least five calendar days before taking such action, that it intends to take such action, which notice attaches the most current version of any proposed agreement or a detailed summary of all material terms of such Superior Proposal and the identity of the offeror, (ii) if requested by Parent, during such five calendar day period, the Company and its Representatives have discussed and negotiated in good faith with Parent regarding any proposal by Parent to amend the terms of this Agreement in response to such Superior Proposal and (iii) after such five calendar day period, the Board of Directors of the Company determines in good faith, taking into account any proposal by Parent to amend the terms of this Agreement, that such Acquisition Proposal continues to constitute a Superior Proposal (it being understood and agreed that in the event of any amendment to the financial terms or other material terms of any such Superior Proposal, a new written notification from the Company consistent with that described in clause (i) of this Section 6.03(e) shall be required and a new notice period under clause (i) of this Section 6.03(e) shall commence, during which notice period the Company shall terminate be required to comply with the requirements of this Agreement in accordance Section 6.03(e) anew, except that such new notice period shall be for three Business Days (as opposed to five calendar days)). After delivery of such written notice pursuant to the immediately preceding sentence, the Company shall promptly keep Parent informed of all material developments affecting the material terms of any such Superior Proposal (and the Company shall provide Parent with Section 8.01(c)(iicopies of any additional written materials received that relate to such Superior Proposal).
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Aetna Inc /Pa/)
No Solicitation; Other Offers. (a) The Company shall After the date hereof and prior to the Closing Date or earlier termination of this Agreement in accordance with its terms, the Sellers will not, and shall not permit any of its the Sellers will cause their Subsidiaries to, and shall cause its Affiliates and the officers, directors and directors, employees, and any investment bankers, consultantsattorneys, financial advisors, accountants, consultants and other agents or other representatives retained by it or any and advisors of its the Sellers and their Subsidiaries and Affiliates not to, directly or indirectly, (i) take any action to encourage, solicit, initiate or encourage knowingly facilitate the submission of any Acquisition Proposal or (as hereinafter definedii) encourage or engage in discussions or negotiations with, or furnish disclose any nonpublic information relating to the Targeted Businesses or afford access to the properties, books or records of the Targeted Businesses or of the Sellers regarding the Target Assets to, 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 information with respect to event, within forty-eight hours of any Acquisition Proposal received by the Sellers or any of their Subsidiaries or any of their representatives, Affiliates, employees, advisors, agents, officers or directors, any indication that any Person is considering making an Acquisition Proposal or knowingly facilitate any effort request for nonpublic information relating to the Targeted Businesses or attempt for access to make the properties, books or records of the Sellers or any of their Subsidiaries by any Person who is considering making, or has made, an Acquisition Proposal. Any violation The Sellers shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal, indication or request and shall also include, as and when received, copies of any written offer, proposal or materials received. The Sellers shall keep Purchaser fully informed, on a current basis, of the foregoing restrictions by status and details of any of the Company's representativessuch Acquisition Proposal, whether indication or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach request. Upon execution of this Agreement by Agreement, the Company. The Company shall, Sellers shall and shall cause its Subsidiaries their Subsidiaries, and the their respective officers, directors, employees Affiliates, representatives, consultants and advisors to immediately cease any discussions or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, negotiations with any Persons conducted prior to the date hereof execution of this Agreement with respect to any Acquisition Proposal andand 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 the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries others in the possession of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Company Board from complying connection with Rule 14d-9 or Rule 14e-2 under the Exchange Act with respect to any potential 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 LawProposal.
(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)foregoing, the Company Sellers may negotiate or otherwise engage in substantive discussions or negotiations with, and furnish nonpublic information or access 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 received without violation of the Shares outstanding or fifty percent of the consolidated assets of the Company this Agreement if (i) a majority the Sellers have complied with the terms of Section 5.2(a), (ii) the Company Board of Directors of Sylvan or the Special Committee of Sylvan, as appropriate, 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, faith 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 be deemed to constitute a breach of its fiduciary duties under applicable Lawlaw, and (iiiii) such Person executes a confidentiality agreement in a form with terms no less favorable to the Company Sellers than those contained in the Confidentiality AgreementAgreement and (iv) the Sellers shall have delivered to Purchaser three Business Days' prior written notice (the "First Notice") advising Purchaser that it intends to take such action. Prior 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 providing any information Section 7.3(a)(x) or 7.3(a)(y). If Purchaser elects the Termination Fee pursuant to or entering into discussions or negotiations 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 any respect to a Person in connection with that has provided an Acquisition Proposal by unless such Person, the Company shall notify Parent of any Person provides a new 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 following 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 matching offer by Purchaser pursuant 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 LawSection 7.1(c)(ii)(D).
(c) Except as permitted by the second sentence Nothing contained in this Section 5.2 or any other provision of this Section 6.05(c)Agreement shall prohibit the Sellers or any director, neither officer, agent or employee of the Company Board nor any committee thereof shall Sellers from (i) withdraw or modify, or publicly propose taking and disclosing to withdraw or modify, in Sylvan's shareholders 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 position with respect to a Superior Proposal unless tender or exchange offer by a third party pursuant to Rule 14d-9 and 14e-2 promulgated under the Company shall terminate this Agreement Exchange Act or (ii) making such disclosure to Sylvan's shareholders as, in accordance the good faith judgment of Sylvan's Board of Directors after consultation with Section 8.01(c)(ii)outside counsel, is required under applicable law.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Asset Purchase Agreement (Apollo Investment Fund Iv Lp)
No Solicitation; Other Offers. (a) The From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 11, neither the Company shall not, and shall not permit nor any of its Subsidiaries to, and shall cause its nor any of the officers, directors and directors, employees, and any investment bankers, consultants, financial advisors, accountants, agents consultants or other representatives retained by it or any agents of the Company and its Subsidiaries not towill, directly or indirectly, (i) solicit, initiate initiate, encourage, induce or encourage knowingly facilitate (including, without limitation by way of furnishing information) the submission of any Acquisition Proposal or any inquiries with respect thereto, (as hereinafter definedii) or engage in discussions or negotiations or furnish to with any Person any information with respect to concerning an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the foregoing restrictions by any knowledge of the Company's representatives, whether is making or not such representative is so authorized and whether considering making, or not such representative is purporting 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 Company of any Acquisition Proposal or any request for nonpublic information relating to act on behalf of the Company or otherwiseany of its Subsidiaries by any Person who, shall be deemed a breach to the knowledge of this Agreement by 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 (including, without limitation, amendments or proposed amendments) of any such Acquisition Proposal or request. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliatesAffiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange 1934 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 LawProposal.
(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(c7.04(a), the Company may may, until the earliest to occur of the Offer Completion Date, a purchase of Company Stock pursuant to the Option, and 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 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 complied 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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 Merger7.04, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter Board of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time Directors of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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:the
Appears in 1 contract
Samples: Merger Agreement (Pulliam Myrta J)
No Solicitation; Other Offers. (a) The Company shall From the date hereof until termination of this Agreement or the Effective Time, whichever occurs first, Northstar will not, and shall not permit any of will use its Subsidiaries to, and shall best efforts to cause its officers, directors and directors, employees, representatives and any agents (including, without limitation, attorneys, investment bankers, consultants, financial advisors, bankers and accountants, agents or other representatives retained by it or any of its Subsidiaries ) not to, directly or indirectly, solicit, initiate or encourage the submission any inquiry, proposal, offer or indication of interest from any person that constitutes or would reasonably be expected to lead to any Acquisition Proposal (as hereinafter defined) or engage in agree to or endorse, approve or recommend any Acquisition Proposal, or enter into discussions or negotiations negotiate with or furnish provide any information to any Person person in furtherance of any information with respect such inquiries or to an Acquisition Proposal obtain or knowingly facilitate approve any effort or attempt to make an Acquisition Proposal. Any violation , and Northstar shall immediately notify Buyer of all relevant terms of any such inquiries or proposals received by Northstar or by any such officer, director, employee, representatives or agents, related to any of such matters, any material change in the details (including any amendments or proposed amendments) of any such inquiries or proposals, the identity of each of the foregoing restrictions by any of the Company's representativespersons making such inquiries or proposals, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiationsand, if anysuch inquiry or proposal is in writing, with any Persons conducted prior to the date hereof with respect to any Acquisition Proposal and, to the extent within its power, to recover Northstar shall immediately deliver 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 delivered 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 Buyer a copy of any written Acquisition Proposal such inquiry 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 Proposalproposal; provided, however, that if, prior to the Company Effective Time, Northstar shall not receive an unsolicited Acquisition Proposal that the Northstar Board, after consultation with its legal counsel, reasonably believes that it has a fiduciary duty to consider, then Northstar, without violating this Agreement, may thereafter furnish information to and enter into discussions or negotiations with such third party. Nothing contained in this Section 8.5(a) or any other provision of this Agreement shall prevent the Northstar Board, after receiving an agreement with respect opinion of outside counsel to the effect that it is required to do so in order to discharge properly its fiduciary duties, from considering, negotiating, approving and recommending to the shareholders of Northstar an unsolicited, bona fide written Acquisition Proposal which the Northstar Board determines in good faith (i) would result in a transaction more favorable to Northstar's shareholders than the transaction contemplated by this Agreement and (ii) is made by a person financially capable of consummating such Acquisition Proposal (any such Acquisition Proposal being referred to herein as a "Superior Proposal"). If the Northstar Board shall have resolved to accept or accepted a Superior Proposal unless the Company shall then, upon written notice to Buyer, Northstar may pursuant to Section 7.1(g), terminate this Agreement in accordance with Section 8.01(c)(ii).
(d) and the transactions contemplated hereby. For purposes hereof, "Acquisition Proposal" means any proposal or offer to acquire all or a substantial part of this Agreement:the business and properties of Northstar or any capital stock of Northstar, whether by merger, tender offer, exchange offer, sale of assets or similar transactions involving Northstar.
Appears in 1 contract
No Solicitation; Other Offers. (a) The From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the Company shall and its Subsidiaries will not, and shall not permit any of the Company will use its Subsidiaries to, and shall reasonable best efforts to cause its the officers, directors and directors, employees, and any investment bankers, consultants, financial advisors, accountants, consultants or other agents or other representatives retained by it or any (collectively, "AGENTS") of the Company and its Subsidiaries not to, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) or engage in discussions or negotiations with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company or furnish any of its Subsidiaries to any Person any information with respect who, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or knowingly (iv) take any other action to facilitate any effort inquiries or attempt the making of any proposal that constitutes or that could reasonably be expected to make lead to an Acquisition Proposal. Any violation The Company will notify Parent promptly (but in no event later than 24 hours) after receipt by the Company of any Acquisition Proposal or any request for nonpublic information relating to the foregoing restrictions Company or any of its Subsidiaries by any Person who, to the knowledge of the Company's representatives, whether is making, or not has made, an Acquisition Proposal. The Company shall promptly provide such representative is so authorized notice orally and whether in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or not such representative is purporting to act on behalf 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 or otherwise, shall be deemed a breach provide to Parent copies of this Agreement by any written communications between the CompanyCompany and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisorsrequest. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange 1934 Act with respect to any Acquisition Proposal or making shall prevent NA and its Agents from taking any disclosure to the Company's stockholders that, in the good faith judgment action permitted under Section 6.04 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 LawNA Merger Agreement.
(b) Notwithstanding the first sentence of Sections 6.05(a)foregoing, the Company may, at any time prior to the time of acceptance of Shares pursuant the Company's stockholders shall have voted to the Offer and subject to the provisions of approve this Section 6.05(b) and Section 6.05(c)Agreement, 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 the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors 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, faith that such Acquisition Proposal would reasonably be expected is likely 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 constitute a breach of its fiduciary duties under applicable Lawlaw, and (iiiii) such Person executes a confidentiality agreement in a form with terms no less favorable to the Company than those contained in the Confidentiality Agreement. Prior Agreement (except as to providing any information to or entering into discussions or negotiations with any Person in connection with an Acquisition Proposal by such Person, the standstill provisions) and (iv) 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 have 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, Parent prior written notice advising Parent that the failure it intends to take such action would cause the Company Board to breach its fiduciary duties under applicable Lawaction.
(c) Except as permitted by the second sentence The Board of this Section 6.05(c), neither Directors of the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 stockholders referred to in Section 1.02 6.02 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 (xi) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Company Board of Directors determines in good faith, upon the recommendation of a nationally recognized financial advisor, faith constitutes a Superior Proposal, (yiii) the Board of Directors of 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 constitute a breach of its fiduciary duties under applicable Law law and (ziv) after five Business Days the Company shall have elapsed following the Company's delivery delivered to Parent of 24 hours prior written notice advising Parent that the Company Board has received a Superior Proposal specifying the material terms and conditions of it intends to take 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)action.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Rj Reynolds Tobacco Holdings Inc)
No Solicitation; Other Offers. (a) The Except as required under applicable Law, the Company shall not, and shall not authorize or permit any of its Subsidiaries toSubsidiaries, and shall cause its officers, directors and directors, employees, and any investment bankers, consultants, financial advisorsattorneys, accountants, consultants or other agents or other representatives retained by it or any of its Subsidiaries not advisors to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) enter into or engage participate in any discussions or negotiations with, furnish any confidential information relating to the Company or furnish any of its Subsidiaries or afford access to the business, properties, assets, books 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 effort by, any third party that is seeking to make, or has made, an Acquisition Proposal, or (iii) grant any waiver or release under any standstill or similar agreement to which the Company or any of its Subsidiaries is a party.
(b) The Company shall, and shall cause 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 Person any information with respect to of such Persons that it is considering making an Acquisition Proposal or knowingly facilitate any effort request for confidential information relating to the Company or attempt to make an Acquisition Proposal. Any violation of the foregoing restrictions by any of its Subsidiaries or for access to the Company's representativesbusiness, whether properties, assets, books or not such representative is so authorized and whether or not such representative is purporting to act on behalf records of the Company or otherwiseany of its Subsidiaries by any third party that the Company reasonably believes may be considering making, shall be deemed a breach of this Agreement by the Companyor has made, an Acquisition Proposal. The Company shall, and shall cause its Subsidiaries all such other Persons to identify the third party making, and the officersterms and conditions of, directorsany such Acquisition Proposal, employees indication or any investment bankersrequest. The Company shall, attorneysand shall cause all such other Persons to, consultantskeep ABI fully informed, financial advisorson a current basis, agents or other representatives of the status and details of any such Acquisition Proposal, indication or request. The Company shall, and its Subsidiaries shall cause all such other Persons to, cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, with any Persons third party conducted prior to the date hereof with respect to any Acquisition Proposal and, and use its commercially reasonable best efforts to the extent within cause any such Party (or its power, to recover agents or cause to be destroyed all advisors) in possession of confidential information concerning about the Company and or any of 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 that was furnished by 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 on behalf 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 return 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 destroy all 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 Lawinformation.
(c) Except as permitted by For the second sentence avoidance of doubt, nothing in this Section 6.05(c), neither the Company Board nor any committee thereof Agreement shall restrict (i) withdraw any holder of Company Shares from considering, negotiating 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, (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, commitment or similar agreement related to accepting any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board and nothing herein shall be permitted (i) not construed to recommend require any holder of Company Shares to its stockholders acceptance of participate or sell Company Shares in the Offer and/or approval and adoption of this Agreement and or through 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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:Trust,
Appears in 1 contract
Samples: Transaction Agreement
No Solicitation; Other Offers. (a) The Nothing contained in this Section 4.7(a) shall prevent the Board of Directors of Company or Special Committee from considering, discussing, or providing any nonpublic information to any 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 Special Committee, as the case may be, determines in good faith (upon consultation of 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 the Special Committee from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer.
(b) Company shall notimmediately notify Rocket and Acquiror after receipt of any Acquisition Proposal, and shall not permit or any modification of its Subsidiaries toor amendments to any Acquisition Proposal, and shall cause its officers, directors and employees, and or any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it request for nonpublic information relating to Company or any of its Subsidiaries not to, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 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 or for access to the 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 PersonSubsidiary that it is considering making, the or has made, an Acquisition Proposal. Such notice to Rocket and Acquiror shall be made orally and in writing, and shall indicate whether Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of is providing or intends to provide 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 the 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 access 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 concerning Company as 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 LawSection 4.7(c).
(c) Except as permitted If the Board of Directors of Company or the Special Committee receives a request for material nonpublic information by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) withdraw or modifya Person who makes, or publicly propose to withdraw or modifyindicates that it is considering making, in a manner adverse to Parentan Acquisition Proposal, 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 MergerBoard of Directors or the Special Committee, (ii) approve or recommendas the case may be, 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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) the Company Board determines in good faith, upon the recommendation of the Special Committee faith after consultation by with outside counsel that it would be in the Special Committee 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 third party from the confidentiality and advice from its outside legal counsel, that the failure standstill provisions of any confidentiality agreement to take such action would cause the which 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 is 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)party.
(d) For purposes Company shall use its commercially reasonable efforts to inform the officers, directors and employees of Company and its Subsidiaries and any outside counsel, financial advisor, investment banker or other advisor or representative retained by Company of the restrictions described in this Agreement:Section.
Appears in 1 contract
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit any of its 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, solicit, initiate or encourage Promptly following the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach execution of this Agreement by Agreement, the Company. The Company Seller Parties shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its their respective Subsidiaries to, cease immediately and cause to be terminated terminated, and shall not authorize or knowingly permit any of their Representatives to continue, any and all existing activities, discussions and or negotiations, if any, with any Persons third party conducted prior to the date hereof with respect to any Acquisition Proposal andProposal. Subject to Section 5.19(b), from the date of this Agreement until the Closing or, if earlier, the date on which this Agreement is terminated pursuant to Section 8.01, Seller Parties shall not, nor shall they authorize or permit any of their respective Subsidiaries or any of their respective Representatives to, directly or indirectly through another Person: (i) solicit, initiate or knowingly encourage, knowingly induce or knowingly facilitate or take any other action which would reasonably be expected to lead to, the making, submission or announcement of, any Acquisition Proposal; (ii) enter into, continue or participate in any discussions or any negotiations with any Third Party regarding any proposal that constitutes, or would reasonably be expected to lead to the extent within its powermaking, submission or announcement of, any Acquisition Proposal; (iii) furnish any non-public information regarding the Business to recover any Person or afford any Person access to the business, property, assets, books or records of Seller Parties or any of their respective Subsidiaries in connection with or in response to an Acquisition Proposal or an inquiry that would reasonably be expected to lead to the making, submission or announcement of an Acquisition Proposal; (iv) approve or recommend an Acquisition Proposal or any letter of intent, memorandum of understanding or other contract contemplating an Acquisition Proposal or requiring Seller Parties to abandon or terminate their obligations under this Agreement; (v) waive, terminate, modify or release any Person (other than Purchasers or their respective affiliates) from any provision of or grant any permission, waiver or request under, or fail to enforce, any “standstill” or similar agreement or obligation; (vi) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of the DGCL; or (vii) resolve or agree to do any of the foregoing. Seller Parties shall, and shall cause their Subsidiaries and their respective Representatives to, immediately cease and cause to be destroyed terminated 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 discussions or negotiations with Rule 14d-9 or Rule 14e-2 under the Exchange Act any Person previously conducted with respect to any Acquisition Proposal Proposal. Seller Parties shall promptly deny access to any data room (whether virtual or making actual) containing any disclosure confidential information previously furnished to any Third Party relating to the Company's stockholders thatconsideration of any Acquisition Proposal by any such Third Party. Without limiting the foregoing, Seller Parties understand, acknowledge and agree that any breach of the obligations set forth in the good faith judgment preceding sentence by any of the majority Seller Parties’ Subsidiaries, officers, directors, employees, agents, financial advisors or legal advisors shall be deemed to be a breach 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 this Section 5.19(a) by applicable LawSeller Parties.
(b) Notwithstanding anything in this Section 5.19 to the first sentence contrary, at any time before the Required Stockholder Vote is obtained, in response to an unsolicited written Acquisition Proposal made after the date of Sections 6.05(athis Agreement in circumstances not involving a material breach of this Agreement that the Public Company Board determines in good faith (after consultation with outside legal counsel and its financial advisor) constitutes, or would reasonably be expected to result in, a Superior Proposal, the Public Company may, upon a good faith determination by the Public Company Board (after consultation with its outside legal counsel) that failure to take such action would be inconsistent with the Public Company Board’s fiduciary duties under applicable Law:
(i) provide access to the business, properties, assets, books and records and furnish information (including by providing access to a data room, whether virtual or actual) with respect to Seller Parties and their respective Subsidiaries to the Person making such Acquisition Proposal (and such Person’s Representatives); provided, however, that all such information shall have been previously provided to Purchasers or is made available to Purchasers at substantially the same time that it is provided by the Seller Parties to such Person; and
(ii) participate in discussions or negotiations with the Person (and its Representatives) making such Acquisition Proposal; and provided further, that, prior to taking any of the time actions described in clauses (i) or (ii) above, Seller Parties and such Person enter into a confidentiality agreement in customary form that is no less favorable in the aggregate to Seller than the Confidentiality Agreement.
(c) Seller Parties shall promptly (and in any event within forty-eight (48) hours) notify Purchasers of acceptance the receipt of Shares pursuant any Acquisition Proposal. In such notice, Seller Parties shall identify the third party making, and a summary of the material terms and conditions of, any such Acquisition Proposal, indication or request and thereafter shall keep Purchasers reasonably informed, on a current basis as practicable, of the status and material terms of any such Acquisition Proposal, indication, or request, including any material amendments or proposed amendments as to the Offer price and subject to the provisions other material terms thereof.
(d) Except as otherwise permitted by clauses (A) through (C) of this Section 6.05(b5.19(d) and Section 6.05(cSections 5.19(e) and 5.19(f):
(i) the Seller Board shall not fail to make the Seller Board Recommendation to Seller’s stockholders (including through any failure to include the Seller Board Recommendation in the Proxy Statement);
(ii) the Seller Board shall not withhold, withdraw, amend, qualify or modify in a manner adverse to Purchasers, or publicly propose to withhold, withdraw, amend, qualify or modify in a manner adverse to Purchasers, the Seller Board Recommendation;
(iii) the Seller Board shall not adopt, approve or recommend, or otherwise declare advisable the adoption of, any Acquisition Proposal or publicly propose to adopt, approve or recommend, or otherwise declare advisable the adoption of, any Acquisition Proposal;
(iv) the Seller Board shall not make any public statement inconsistent with the Seller Board Recommendation; or
(v) the Seller Board shall not resolve to take any such actions (each such foregoing action or failure to act in clauses “(i)” through “(v)” being referred to as a “Change in the Seller Board Recommendation”);
(vi) the Company Board shall not withhold, withdraw, amend, qualify or modify in a manner adverse to Purchasers, or publicly propose to withhold, withdraw, amend, qualify or modify in a manner adverse to Purchasers, the Company may negotiate Board Approval;
(vii) the Company Board shall not adopt, approve or recommend, or otherwise engage in substantive discussions with, and furnish nonpublic information todeclare advisable the adoption of, any Person Acquisition Proposal or publicly propose to adopt, approve or recommend, or otherwise declare advisable the adoption of, any Acquisition Proposal;
(viii) the Company Board shall not make any public statement inconsistent with the Company Board Approval; or
(ix) the Company Board shall not resolve to take any such actions (each such foregoing action or failure to act in clauses “(vi)” through “(ix)” being referred to as a “Change in the Company Board Approval”). Notwithstanding the foregoing, the Seller Board or the Company Board, as applicable, may at any time before the Required Stockholder Vote is obtained, take any of the actions set forth in sub-clauses (A), (B) and (C) below; provided, however, that prior to taking any such action Seller Parties comply with Section 5.19(e) of this Agreement:
(A) effect a Change in the Seller Board Recommendation in response to an unsolicited bona fide written Acquisition Proposal by such Person to acquire in any manner at least fifty percent circumstances not involving a material breach of this Agreement that is not withdrawn if the Shares outstanding or fifty percent of the consolidated assets of the Company if (i) a majority of the Company Seller Board determines concludes 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 be inconsistent with 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 Law 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 Seller Board determines concludes in good faith, upon the recommendation of the Special Committee after consultation by with outside legal counsel and financial advisors, that such Acquisition Proposal constitutes a Superior Proposal;
(B) effect a Change in the Special Committee Seller Board Recommendation in response to an Intervening Event if the Seller Board concludes in good faith, after consultation with and advice from its outside legal counsel, that the failure to take such action would cause be inconsistent with its fiduciary duties under applicable Law; and
(C) terminate this Agreement pursuant to Section 8.01(h), but only if the Public Company receives an unsolicited, bona fide written Acquisition Proposal in circumstances not involving a material breach of this Agreement that is not withdrawn that the Public Company Board concludes in good faith, after consultation with outside legal counsel and the Public Company’s financial advisor, constitutes a Superior Proposal and the Public Company Board concludes in good faith, after consultation with outside legal counsel, that the failure to breach enter into such definitive agreement would be inconsistent with its fiduciary duties under applicable Law.
(ce) Except as permitted by the second sentence of this Section 6.05(c), neither The Seller Board or the Company Board nor any committee thereof Board, as applicable, shall not be entitled to: (i) withdraw make a Change in the Seller Board Recommendation pursuant to Section 5.19(d)(A) or modify, Section 5.19(d)(B); 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, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to terminate this Agreement and enter into any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Company Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment Agreement pursuant to Section 5.19(d)(C), unless: (A) Seller Parties shall have first provided three (3) days’ prior written notice to Purchasers that they are prepared to (1) make a Change in the Offer, the Company Seller Board shall be permitted Recommendation (ia “Recommendation Change Notice”) not to recommend to its stockholders 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 stockholders referred to in Section 1.02 hereof, (iii) to approve or recommend any Superior Proposal or (iv2) to terminate this Agreement pursuant to Section 8.01(h) in accordance with Section 8.01(c)(iiresponse to a Superior Proposal (a “Superior Proposal Notice”), which notice shall, (I) hereof and in connection therewith enter into an agreement with respect if relating 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 specify the material terms and conditions of any such Superior Proposal and identifying the identity of the Person making such Superior Proposal, contain a copy of the Superior Proposal, and contain a copy of any proposed agreements for such Superior Proposal (including any financing commitments related thereto) (or, in each case, if not provided in writing to Seller Parties or any of their respective Representatives, a written summary of the terms thereof and the identity of the Person making Superior Proposal) (it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed to be a Change in the Seller Board Recommendation), or (II) if relating to an Intervening Event, describe such Intervening Event and the reasons for the proposed Change in the Seller Board Recommendation, (B) if the notice is in response to a Superior Proposal, during such three (3) day period, (y) Seller Parties shall negotiate, and cause their respective Representatives to negotiate, with Purchasers and their Representatives in good faith to determine whether to propose revisions to the terms of this Agreement such that it would obviate the need for the Seller Board to make a Change in the Seller Board Recommendation, and (z) the Public Company Board shall have considered in good faith any changes to this Agreement suggested by Purchasers and shall not have determined (after consultation with its outside legal and financial advisors) that the Acquisition Proposal previously constituting a Superior Proposal no longer constitutes a Superior Proposal if such changes proposed by Purchasers were to be given effect (it being understood that Seller Parties shall not take any action with respect to the Superior Proposal during such three (3) Business Day period); provided that any material amendment to the financial terms or other material terms of such Superior Proposal occurring prior to Seller’s effecting a Change in the Seller Board Recommendation shall require a new written notification from Seller Parties and an additional three (3) day period that satisfies this Section 5.19(e), and (C) if the notice is in response to an Intervening Event, during such three (3) day period, if requested by Purchasers, Seller Parties shall engage in good faith negotiations with Purchasers to amend this Agreement in such a manner that obviates the need for a Change in the Seller Board Recommendation as a result of the Intervening Event.
(f) Nothing contained in this Section 5.19 or elsewhere in this Agreement shall prohibit Seller or the Company from: (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; or (ii) making any disclosure to its stockholders if, in the good faith judgment of the Public Company Board, after consultation with outside legal counsel, failure to so disclose would be inconsistent with its fiduciary duties under applicable Law; provided, however, that the Company this Section 5.19(f) shall not enter into an agreement affect the obligations of Seller and the Seller Board not to make a Change in Seller Board Recommendation except in compliance with respect to a Superior Proposal unless the Company shall terminate Sections 5.19(d) and 5.19(e) of this Agreement (it being understood that any “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not be deemed to be a Change in accordance with Section 8.01(c)(iithe Seller Board Recommendation).
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit any of its 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, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company Each Stockholder shall, and shall cause its Subsidiaries and the officerstrustees, directorsrepresentatives, employees or any consultants, investment bankers, attorneys, consultantsaccountants and other agents acting in its capacity as such (collectively, financial advisors, agents a person’s or other representatives of the Company and its Subsidiaries entity’s “Representatives”) to, immediately cease immediately and cause to be terminated all activitiesany discussions, discussions and negotiations, if any, activities or negotiations with any other Person or Persons conducted prior to the date hereof (other than Parent and Parent’s representatives) that may be ongoing with respect to any Acquisition Proposal and, Proposal. Each Stockholder further agrees that it and its Representatives (to the extent within its powerthey are serving as a Representative of a Stockholder) shall not (i) directly or indirectly solicit, initiate, knowingly encourage or knowingly facilitate any inquiries or the making of any Acquisition Proposal, (ii) directly or indirectly participate in any discussions or negotiations with, furnish any information relating 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 afford access to the Company's stockholders thatbusiness, in the good faith judgment of the majority of the members properties, books, records, data or confidential information of the Company Boardto any Third Party that is seeking to make, upon recommendation or has made an Acquisition Proposal, or take any other action to knowingly facilitate any inquiries or the making of the Special Committee after consultation with and advice from its outside legal counselany proposal that constitutes, 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 or 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 lead to, an Acquisition Proposal, (iii) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, an Acquisition Proposal, or (iv) agree or publicly propose to do any of the foregoing. Each Stockholder further agrees that it shall promptly notify Parent (but in a Superior no event later than forty-eight hours) after receipt by such Stockholder (or any of its Representatives) of any Acquisition Proposal, any inquiry that could be reasonably expected to lead to an Acquisition 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 or of any request for information relating to the Company than by any Third Party that to the Confidentiality Agreement. Prior to providing any information to knowledge of the Stockholder may be considering making, or entering into discussions or negotiations with any Person in connection with has made an Acquisition Proposal by such PersonProposal, which notice shall be provided in writing and shall identify the Company shall notify Parent of any Acquisition Proposal (includingperson making, without limitation, and 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 thereofof, 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, inquiry or request (including any material changes thereto and shall promptly give Parent a copy copies of any information delivered to written materials received from such Person which has not previously been provided Third Party or made available to Parentits Representatives in connection therewith). The Company Stockholders shall not waive keep Parent fully informed of 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related material change to any Acquisition Proposal, inquiry or request for information. Notwithstanding 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 to enforce specifically the terms and provisions thereof in any court having jurisdiction. Without limiting the foregoing, prior to the time of acceptance Parent and each of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance Stockholders agree that any violation of the Offer and/or approval and adoption restrictions set forth in this Section 4 by any Representative of a Stockholder shall constitute a breach by such Stockholder 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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)4.
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit any cause each of its Subsidiaries toand each of their respective Affiliates and Representatives to promptly request any such Person or Persons (other than Parent and Merger Subsidiary or their Representatives) with whom there have been any such discussions, 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, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) or engage in discussions activities or negotiations or furnish to any Person any information with respect to regarding an Acquisition Proposal at any time to promptly return or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated destroy 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 cause to be destroyed all confidential information concerning the Company and its Subsidiaries in accordance with the possession of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent applicable confidentiality agreement between 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 such Person. Subject to the provisions of this Section 6.05(b) and Section 6.05(c)5.02, the Company may negotiate or otherwise engage in substantive discussions withshall not and shall cause each of its Subsidiaries not to, and furnish nonpublic information shall direct the Company’s and its Subsidiaries’ Representatives not 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 directly or fifty percent of the consolidated assets of the Company if indirectly, (i) a majority solicit, initiate, knowingly facilitate, or knowingly encourage, the making, submission or public announcement of the Company Board determines in good faithany inquiry, upon the recommendation of the Special Committee after the Special Committee has received the advice of Xxxxxxxx Xxxxx proposal or another nationally recognized financial advisoroffer that constitutes, that such Acquisition Proposal or would reasonably be expected to result in a Superior Proposal (as hereinafter defined) andconstitute, after consultation with and advice from outside legal counselan Acquisition Proposal, that the failure to take such action would cause the Company Board to breach its fiduciary duties under applicable Law, and (ii) participate in any discussions or negotiations or otherwise cooperate regarding an Acquisition Proposal with, or furnish any nonpublic information regarding an Acquisition Proposal to, any Person that has made an Acquisition Proposal, except that the Company and its Representatives shall be entitled to notify such Person executes a confidentiality as to the existence of the provisions of this Section 5.02, (iii) enter into any written letter of intent, agreement, contract or agreement in a form no less favorable principle regarding an Acquisition Proposal (except for confidentiality agreements permitted under Section 5.02(d), an “Alternative Acquisition Agreement”)), (iv) take any action to make the provisions of any Anti-Takeover Statute inapplicable to any transaction contemplated by an Acquisition Proposal, (v) terminate, amend, release, modify or fail to enforce any provision of, or grant any permission, waiver or request under, any confidentiality, standstill or similar agreement entered into by the Company in respect of or in contemplation of an Acquisition Proposal or (vi) publicly propose to do any of the foregoing (in each case other than disclosure of and compliance with the terms of this Agreement).
(b) From and after the date of this Agreement, the Company shall promptly notify Parent in writing after the Company or any of its Subsidiaries has received any request for discussions or negotiations, or any request for access to the properties or books and records of the Company or any of its Subsidiaries, of which the Company or any of its Subsidiaries or any of their respective Representatives is or has become aware, or any request for information relating to the Company than the Confidentiality Agreement. Prior to providing or any information to or entering into discussions or negotiations with any Person of its Subsidiaries, in each case, in connection with an Acquisition Proposal by such Personor any proposal, the Company inquiry, offer or request relating to or constituting an Acquisition Proposal. Such notice to Parent shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and indicate the identity of the Person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, such proposal or request 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 proposal, if any. Following the date hereof, the Company shall promptly advise Parent (and in any event within 24 hours) of any material developments, discussions or negotiations regarding any Acquisition Proposal (whether made before or after the date hereof) or any material change to the financial or other terms of any 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.
(c) Except as expressly permitted by the second sentence of or otherwise set forth in this Section 6.05(c)5.02, neither the Company Board nor any committee thereof shall not (ii)(A) fail to include the Company Board Recommendation in the Proxy Statement, (B) change, qualify, withdraw or modify, or publicly propose to change, qualify, withdraw or modify, in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereofthe Company Board Recommendation or (C) adopt, 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 to the shareholders of the Company, an Acquisition Proposal or (iiiD) enter into any agreement, contract or agreement in principle requiring the Company to abandon, terminate or breach its obligations under this Agreement (such actions prohibited by this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) authorize, cause or permit the Company or any Subsidiary of the Company to enter into any letter of intentAlternative Acquisition Agreement.
(d) Notwithstanding anything in this Section 5.02 to the contrary, agreement in principle, acquisition agreement, commitment or similar agreement related to at any Acquisition Proposal. Notwithstanding the foregoing, time prior to the time of acceptance of the Shares for payment pursuant to the Offer, obtaining the Company Board shall be permitted Shareholder Approval:
(i) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, if (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 (xA) the Company has received an receives a written bona fide Acquisition Proposal which the Company Board determines in good faith, upon the recommendation of after consultation with a nationally recognized financial advisoradvisor and outside nationally recognized legal counsel (which may be the Company’s current outside legal counsel), constitutes is or would reasonably be expected to result in a Superior Proposal and (B) the Company has not breached in any material respect Section 5.02(a), the Company may take the following actions: (x) furnish nonpublic information to the Third Party making such Acquisition Proposal, if, and only if, prior to so furnishing such information, the Company receives from the Third Party an executed confidentiality agreement having provisions as to confidential treatment of information that are substantially similar to the confidentiality provisions of the Confidentiality Agreement (and does not omit restrictive provisions contained in the Confidentiality Agreement); provided, however, that the Company shall as promptly as practicable provide to Parent any nonpublic information concerning the Company and its Subsidiaries that is provided to a third party given such access which was not previously provided to Parent or its Representatives, and (y) engage in discussions or negotiations with the Company Board determines in good faith, upon Third Party with respect to 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 (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 Acquisition Proposal; provided, however, that the Company shall as promptly as practicable provide to Parent a copy of any Acquisition Proposal made to the Company or any of its Subsidiaries; and
(ii) in response to an Acquisition Proposal, the Company Board may effect a Company Adverse Recommendation Change but only if prior to taking any such action:
(1) the Company Board determines in good faith, after consultation with a nationally recognized financial advisor and outside nationally recognized legal counsel (which may be the Company’s current outside legal counsel), that such Acquisition Proposal is a Superior Proposal (taking into account any adjustment or revisions offered by Parent and intended to be binding on Parent and Merger Subsidiary in response to such Acquisition Proposal (including pursuant to clause (3) below));
(2) the Company has given Parent at least four Business Days’ prior written notice of its intention to effect a Company Adverse Recommendation Change (the “Negotiation Period”) and has contemporaneously provided to Parent a copy of such Superior Proposal and each of the relevant proposed transaction agreements to be entered into by the Company with the Third Party making such Superior Proposal; and
(3) during the Negotiation Period, the Company has negotiated in good faith with Parent to the extent Parent notifies the Company that it wishes to negotiate, to enable Parent to revise the terms of this Agreement, and either (x) prior to the expiration of the Negotiation Period, Parent shall not enter have offered an amendment intended to be binding on Parent and Merger Subsidiary to the terms of this Agreement, or (y) if Parent within such period shall have offered an amendment intended to be binding on Parent and Merger Subsidiary to the terms of this Agreement, the Company Board, after consultation with a nationally recognized financial advisor and outside nationally recognized legal counsel (which may be the Company’s current outside legal counsel), shall have determined in good faith that the Third Party’s Acquisition Proposal remains a Superior Proposal with respect to Parent’s revised proposal; provided, however, that each time material modifications to the material terms of an Acquisition Proposal determined to be a Superior Proposal are made, the Negotiation Period shall be extended for two Business Days after written notification of such change to Parent shall have been provided (which notification shall include a copy or description of the Superior Proposal with such material modifications); and
(4) the Company shall not have breached in any material respect this Section 5.02; in which event, following the satisfaction of each of the foregoing clauses (1) through (4), the Company may terminate this Agreement pursuant to Section 9.01(g); provided, however, that prior to or concurrent with such termination the Company shall have entered into an a definitive agreement with respect to a such Superior Proposal unless and paid Parent the Termination Fee and Expense Reimbursement (to the extent that Parent has at such time provided documentation for such Expense Reimbursement; provided, however, if Parent has not at such time provided documentation for such Expense Reimbursement, the Company shall terminate this Agreement in accordance with promptly pay such Expense Reimbursement to Parent upon receiving such documentation) pursuant to the provisions of Section 8.01(c)(ii10.04(b)(v).
(de) For purposes Notwithstanding anything in this Section 5.02 to the contrary, at any time prior to obtaining the Company Shareholder Approval, other than in connection with an Acquisition Proposal, the Company Board may effect a Company Adverse Recommendation Change in response to an Intervening Event, but only if prior to taking any such action:
(i) the Company Board determines in good faith, after consultation with its outside nationally recognized legal counsel (which may be the Company’s current outside legal counsel), that the failure of the Company Board to make a Company Adverse Recommendation Change in response to an Intervening Event would be inconsistent with the directors’ fiduciary duties under Applicable Law (taking into account any adjustment or revisions proposed by Parent (including pursuant to clause (iii) below));
(ii) the Company Board has given Parent at least three Business Days’ prior written notice of its intention to take such action, which notice shall specify in detail the basis for the Company Adverse Recommendation Change;
(iii) during such three Business Day period, the Company has negotiated, in good faith with Parent (to the extent Parent notifies the Company that it wishes to negotiate), to enable Parent to revise the terms of this Agreement:Agreement in such a manner that would enable the Company Board to determine in good faith that, irrespective of the occurrence of the Intervening Event, the failure to make a Company Adverse Recommendation Change would no longer be inconsistent with the directors’ fiduciary duties under Applicable Law; and
(iv) following such three Business Day period, the Company shall have determined in good faith, after consultation with its nationally recognized financial advisor and outside nationally recognized legal counsel (which may be the Company’s current outside legal counsel), that the revisions to this Agreement offered by Parent pursuant to the foregoing clause (iii) would not obviate the need for the Company Board, in accordance with the directors’ fiduciary duties under Applicable Law, to make a Company Adverse Recommendation Change in response to the occurrence of such Intervening Event.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from (i) disclosing to its shareholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the 1934 Act (so long as any disclosure made or action taken is consistent with Section 5.02), or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder or (ii) making any disclosure to its shareholders if the Company Board determines in good faith, after consultation with the Company’s outside nationally recognized legal counsel (which may be the Company’s current outside legal counsel), that the failure of the Company Board to make such disclosure consistent with Section 5.02 would be inconsistent with the directors’ fiduciary duties under Applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Metropolitan Health Networks Inc)
No Solicitation; Other Offers. (a) The From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 8, the Company and its Subsidiaries shall not, and nor shall not they permit any of their Affiliates to, nor shall they authorize any of the officers, directors, employees, investment bankers, consultants and other agents and Affiliates of the Company and its Subsidiaries to, and shall cause its officersdirectly or indirectly, 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, (i) solicit, initiate initiate, encourage, induce or encourage knowingly facilitate (including by way of furnishing information) the submission of any Acquisition Proposal or any inquiries with respect thereto, (as hereinafter definedii) or engage in discussions or negotiations or furnish to with any Person any information with respect to concerning an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the foregoing restrictions by any Knowledge of the Company's representatives, whether is making or not such representative is so authorized and whether considering making, or not such representative is purporting 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 Company of any Acquisition Proposal or any request for nonpublic information relating to act on behalf of the Company or otherwiseany of its Subsidiaries by any Person who, shall be deemed a breach to the Knowledge of this Agreement by 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 (including amendments or proposed amendments) of any such Acquisition Proposal or request. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliatesAffiliates, 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 Section 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 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 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 the Company has complied with the terms of this Section 6.05, (ii) the Board of Directors 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, faith that such Acquisition Proposal would could reasonably be expected to result in a Superior Proposal (as hereinafter defined) and, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action would cause the Company Board could reasonably be deemed to constitute a breach of its fiduciary duties under applicable Lawlaw, and (iiiii) such Person executes a confidentiality agreement in a form with terms no less favorable to the Company than those contained in 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, Agreement (including the standstill provisions unless the Company shall notify have amended the Confidentiality Agreement to modify the standstill provisions therein to be no more restrictive of Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the than such 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 is restricted pursuant to such Person which has not previously been provided or made available to Parentconfidentiality 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 waive any standstill or confidentiality provisions previously provided to Parent. Nothing contained in agreements to which this Agreement shall prevent the Company is a party 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 which any Acquisition Proposal or making any disclosure to the Company is subject unless the Company Board determines in good faith, upon the recommendation of the Special Committee after consultation Company’s stockholders required 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 Lawlaw or regulation.
(c) Except as permitted by the second sentence of in this Section 6.05(c), neither the Board of Directors of the Company Board nor any committee thereof shall (i) 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 this Agreement and the MergerMerger 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, commitment agreement or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time Cutoff Date, the Board of acceptance Directors of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii) or to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereof2.08 hereof (each, (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“Adverse Recommendation Change”), but only if in each case (xi) the Company has complied with the terms of this Section 6.05, (ii) the Company has received an unsolicited Acquisition Proposal which the Company Board of Directors determines in good faith, upon the recommendation of a nationally recognized financial advisor, faith constitutes a Superior Proposal, (yiii) the Board of Directors of the Company Board determines in good faith, upon the recommendation of the Special Committee after consultation by the Special Committee with and receipt of advice from its outside legal counsel, that the failure to take such action would cause the Company Board could reasonably be deemed to breach be inconsistent with its fiduciary duties under applicable Law and law, (ziv) after five Business Days the Company shall have elapsed following the Company's delivery delivered to Parent of 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 Board has received a Superior Proposal specifying shall have negotiated in good faith with Parent during such three-Business Day period to make such amendments to the material 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 Superior Proposal three-Business Day period, Parent fails to make a proposal to adjust the terms and identifying conditions of this Agreement that the Person making 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; 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 During the period from the date of this Agreement until the Effective Time or earlier termination of this Agreement:, the Company shall not terminate, amend, modify or waive any provision of any confidentiality or standstill agreement relating to an Acquisition Proposal to which it or any of its Subsidiaries is a party (other than any involving Parent or its Subsidiaries). During such period, the Company agrees to enforce, to the fullest extent permitted under applicable law, the provisions of any such agreement, including obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court of the United States or any state thereof having jurisdiction.
Appears in 1 contract
No Solicitation; Other Offers. (a) The From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, the Company shall not, and shall not permit any cause each of its 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, (a) solicit, initiate, or support or take any action to solicit, initiate or encourage support any inquiries, announcements or communications relating to, or the submission making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (b) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Parent, (as hereinafter definedc) or engage in discussions or negotiations or furnish to any Person other than Parent any information with respect that the Company believes or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or knowingly facilitate take any effort other action regarding any inquiry, expression of interest, proposal or attempt offer that constitutes, or would reasonably be expected to make lead to, an Acquisition Proposal. Any violation , (d) 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 (e) submit any Acquisition Proposal or any matter related thereto to the vote of the foregoing restrictions by any stockholders of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause each of its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement 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 (and in any event within 24 hours) provide Parent with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition 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 the Company or any representatives of the Company from any Person (other than Parent), including in such description the identity of the Person from which such expression of interest, inquiry, proposal, offer or 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 information delivered of the Other Interested Party’s representatives 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 any representatives of the Company is subject unless or transmitted on behalf of the Company Board determines in good faith, upon the recommendation or any representatives 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into the Other Interested Party or any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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)Other Interested Party’s representatives.
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The Company shall After the date hereof and prior to the Closing Date or earlier termination of this Agreement in accordance with its terms, the Sellers will not, and shall not permit any of its the Sellers will cause their Subsidiaries to, and shall cause its Affiliates and the officers, directors and directors, employees, and any investment bankers, consultantsattorneys, financial advisors, accountants, consultants and other agents or other representatives retained by it or any and advisors of its the Sellers and their Subsidiaries and Affiliates not to, directly or indirectly, (i) take any action to encourage, solicit, initiate or encourage knowingly facilitate the submission of any Acquisition Proposal or (as hereinafter definedii) encourage or engage in discussions or negotiations with, or furnish disclose any nonpublic information relating to the Targeted Businesses or afford access to the properties, books or records of the Targeted Businesses or of the Sellers regarding the Target Assets to, 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 information with respect to event, within forty-eight hours of any Acquisition Proposal received by the Sellers or any of their Subsidiaries or any of their representatives, Affiliates, employees, advisors, agents, officers or directors, any indication that any Person is considering making an Acquisition Proposal or knowingly facilitate any effort request for nonpublic information relating to the Targeted Businesses or attempt for access to make the properties, books or records of the Sellers or any of their Subsidiaries by any Person who is considering making, or has made, an Acquisition Proposal. Any violation The Sellers shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal, indication or request and shall also include, as and when received, copies of any written offer, proposal or materials received. The Sellers shall keep Purchaser fully informed, on a current basis, of the foregoing restrictions by status and details of any of the Company's representativessuch Acquisition Proposal, whether indication or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach request. Upon execution of this Agreement by Agreement, the Company. The Company shall, Sellers shall and shall cause its Subsidiaries their Subsidiaries, and the their respective officers, directors, employees Affiliates, representatives, consultants and advisors to immediately cease any discussions or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, negotiations with any Persons conducted prior to the date hereof execution of this Agreement with respect to any Acquisition Proposal andand 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 the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries others in the possession of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Company Board from complying connection with Rule 14d-9 or Rule 14e-2 under the Exchange Act with respect to any potential 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 LawProposal.
(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)foregoing, the Company Sellers may negotiate or otherwise engage in substantive discussions or negotiations with, and furnish nonpublic information or access 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 received without violation of the Shares outstanding or fifty percent of the consolidated assets of the Company this Agreement if (i) a majority the Sellers have complied with the terms of Section 5.2(a), (ii) the Company Board of Directors of Sylvan or the Special Committee of Sylvan, as appropriate, 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, faith 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 be deemed to constitute a breach of its fiduciary duties under applicable Lawlaw, and (iiiii) such Person executes a confidentiality agreement in a form with terms no less favorable to the Company Sellers than those contained in the Confidentiality AgreementAgreement and (iv) the Sellers shall have delivered to Purchaser three Business Days' prior written notice (the "FIRST NOTICE") advising Purchaser that it intends to take such action. Prior 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 providing any information Section 7.3(a)(x) or 7.3(a)(y). If Purchaser elects the Termination Fee pursuant to or entering into discussions or negotiations 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 any respect to a Person in connection with that has provided an Acquisition Proposal by unless such Person, the Company shall notify Parent of any Person provides a new 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 following 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 matching offer by Purchaser pursuant 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 LawSection 7.1(c)(ii)(D).
(c) Except as permitted by the second sentence Nothing contained in this Section 5.2 or any other provision of this Section 6.05(c)Agreement shall prohibit the Sellers or any director, neither officer, agent or employee of the Company Board nor any committee thereof shall Sellers from (i) withdraw or modify, or publicly propose taking and disclosing to withdraw or modify, in Sylvan's shareholders 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 position with respect to a Superior Proposal unless tender or exchange offer by a third party pursuant to Rule 14d-9 and 14e-2 promulgated under the Company shall terminate this Agreement Exchange Act or (ii) making such disclosure to Sylvan's shareholders as, in accordance the good faith judgment of Sylvan's Board of Directors after consultation with Section 8.01(c)(ii)outside counsel, is required under applicable law.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Asset Purchase Agreement (Sylvan Learning Systems Inc)
No Solicitation; Other Offers. (a) The During the Interim Period, the Company shall not, and shall not permit any cause each of its 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 Representatives not to, directly or indirectly, (i) solicit, initiate 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 submission 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 the Purchaser, (as hereinafter definediii) or engage in discussions or negotiations or furnish to any Person other than the Purchaser any information that the Company believes or should reasonably know would 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, (v) submit any Acquisition Proposal or any matter related thereto to the vote of the shareholder of the Company, (vi) amend or grant any waiver or release under any standstill or similar agreement with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation class of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf equity securities of the Company or otherwise(vii) resolve, shall be deemed a breach propose or agree to do any of the foregoing. From and following the date of this Agreement by Agreement, the Company. Company further agrees 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 the Purchaser.
(b) The Company shall, and shall cause each of its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries Representatives to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement 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 (and in any event within 24 hours) provide the Purchaser with an oral and a copy written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Proposal, or any request for information delivered that could reasonably be expected to such Person which has not previously been provided be used for the purposes of formulating any inquiry, proposal or made available to Parent. The Company shall not waive any standstill or confidentiality provisions contained in agreements to which offer regarding a possible Acquisition Proposal, that is received by the Company is a party or to which any Representative of the Company is subject unless from any Person (other than the Company Board determines Purchaser), including in good faith, upon such description the recommendation identity of the Special Committee after consultation by the Special Committee with and advice Person from its outside legal counselwhich such expression of interest, that the failure to take such action would cause the Company Board to breach its fiduciary duties under applicable Lawinquiry, proposal, offer or request for information was received.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
Samples: Share Purchase Agreement
No Solicitation; Other Offers. (a) The From the date hereof until the acceptance for payment by Merger Subsidiary of the Shares tendered into the Offer or the earlier termination hereof, the Company shall will not, and shall will cause its Subsidiaries and the officers, directors, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its Subsidiaries not permit to (i) take any action (y) to solicit or (z) for the primary purpose of initiating or encouraging the submission of any Acquisition Proposal, (ii) engage in substantive discussions or negotiations with, or disclose any material 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, and shall cause any Person who the Company should reasonably be expected to know is considering making, or has made, an Acquisition Proposal or (iii) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other Person, in each case, for the primary purpose of making any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the 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 of its officersadvisors) of any Acquisition Proposal, directors and employees, and or any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it request for nonpublic information relating to the Company or any of its Subsidiaries not toor for access to the properties, solicit, initiate books or encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf records of the Company or otherwiseany of its Subsidiaries by any Person who the Company should reasonably be expected to know is considering making, shall be deemed a breach of this Agreement by the Companyor has made, an Acquisition Proposal. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, officers and other agents or other representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, negotiations 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisorsProposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange 1934 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 LawProposal.
(b) Notwithstanding the first sentence of Sections 6.05(a)foregoing, prior to the time acceptance for payment by Merger Subsidiary of acceptance of the Shares pursuant to tendered in the Offer and subject to the provisions of this Section 6.05(b) and Section 6.05(c), the Company may may, if it gives Parent notice of its intention to do so, negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to who delivers an unsolicited bona fide written Acquisition Superior 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 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 Acquisition Proposal, (ii) the Board of Directors of the Company Board determines in its 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) andreasonable judgment, after consultation with and the receipt of advice from its financial advisor and outside legal counsel, that the failure to take such action would cause could create a reasonable possibility of a breach of the Company Board to breach its fiduciary duties of the Board of Directors under applicable Lawlaw, and (iiiii) such Person executes a confidentiality agreement in a form no less with the Company not more favorable to the Company recipient of such information than the Confidentiality Agreement. Prior to providing For purposes of this Agreement, "Superior Proposal" means any information to or entering into discussions or negotiations with any Person in connection with an Acquisition Proposal by such Personbona fide, 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 unsolicited written Acquisition Proposal or amendments or supplements theretofor at least a majority of the outstanding Shares on terms that the Board of Directors of the Company determines in good faith by a majority vote, and shall thereafter inform Parent on a prompt the basis of the status advice of any discussions or negotiations with such a third party, financial advisor of nationally recognized reputation and any material changes to taking into account all the terms and conditions of such the Acquisition Proposal, including any break-up fees, expense reimbursement provisions and shall promptly give Parent a copy of any information delivered conditions 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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 Mergerconsummation, (iiA) approve or recommend, or publicly propose is more favorable to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (z) after five Business Days have elapsed following all the Company's delivery to Parent stockholders than as provided hereunder, (B) is reasonably capable of written notice advising Parent that the Company Board has received a Superior Proposal specifying the material terms obtaining any required financing and conditions (C) is reasonably capable 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)being completed.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gibson Greetings Inc)
No Solicitation; Other Offers. (a) The Neither the Company shall not, and shall not permit nor any of its Subsidiaries toshall, and nor shall cause its officers, directors and employees, and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it the Company or any of its Subsidiaries authorize or permit any of its or their Representatives to, and the Company shall instruct, and cause each applicable Subsidiary and Affiliate, if any, to instruct, each such Representative not to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 7.03(b), (as hereinafter definedi) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company 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. Any violation of the foregoing restrictions by any of its Subsidiaries to, afford access to the Company's representativesbusiness, whether properties, assets, books or not such representative is so authorized and whether or not such representative is purporting to act on behalf records of the Company or otherwiseany of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that is seeking to make, or has made, any Acquisition Proposal, (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (B) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of Delaware Law, or (C) amend or grant any waiver or release or approve any transaction or redeem any Company Rights under the Company Rights Agreement, except in connection with the transactions contemplated by this Agreement, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal. Subject to Section 7.03(b), neither the Company Board nor any committee thereof shall be deemed fail to make, withdraw or modify in a breach manner adverse to Parent or Merger Subsidiary the Board Recommendation, or recommend an Acquisition Proposal, fail to recommend against acceptance of this Agreement by any tender offer or exchange offer for the CompanyCompany Shares within 10 Business Days after the commencement of such offer, or take any action or make any public statement inconsistent with the Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an “Adverse Recommendation Change”). The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company its and its Subsidiaries their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions and or negotiations, if any, with any Persons Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and, and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of the extent within Company or any of its power, to recover Subsidiaries that was furnished by or cause to be destroyed all information concerning on behalf of the Company and its Subsidiaries at any time after September 30, 2006, to return or destroy (and confirm destruction of) all such information.
(b) Notwithstanding the foregoing, prior to the acceptance for payment of Company Shares under the Offer (in the possession case of clauses (i) through (iii) below), the Company Board, directly or indirectly through any Representative, may (i) engage in negotiations or discussions with any Third Party that, subject to the Company’s compliance with this Section 7.03, has made (and not withdrawn) a bona fide Acquisition Proposal in writing that the Company Board reasonably believes, after considering the advice of its outside legal counsel and of a financial advisor of nationally recognized reputation, constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal, (ii) thereafter furnish to such Third Party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement with terms not materially less favorable to the Company than those contained in the Confidential Disclosure Agreement dated as of January 2, 2007 between the Company and Parent (the “Confidentiality Agreement”) and containing additional provisions that expressly permit the Company to comply with the terms of this Section 7.03 (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of such Persons and their affiliatesSuperior Proposal, representatives and advisorsmake an Adverse Recommendation Change and/or (iv) take any non-appealable, final action that any court of competent jurisdiction orders the Company to take, but in each case referred to in the foregoing clauses (i) through (iii), only if the Company Board determines in good faith by a majority vote, after considering the advice of outside legal counsel to the Company, that it is necessary or appropriate to take such action to comply with its fiduciary duties under Applicable Law. Nothing contained in this Agreement herein shall prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) or Rule 14e-2 Item 1012(a) of Regulation M-A under the Exchange 1934 Act with respect regard to an Acquisition Proposal; provided that nothing in this sentence shall be deemed to excuse any failure otherwise to comply with the requirements of this Section 7.03(b).
(c) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of the preceding subsection unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than 24 hours) after receipt by the Company or any of its Subsidiaries (or any of their respective Representatives) of any Acquisition Proposal or making any disclosure inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company's stockholders Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that, in to the good faith judgment knowledge of the majority Company, is seeking to make, or has made after the date hereof, an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent informed, as promptly as practicable, of the status and details of any such Acquisition Proposal. The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to 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 which 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 is 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 consider 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 promptly provide Parent with any non-public information concerning the Company’s business, present or future performance, financial condition or results of operations, provided to any Third Party that was 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse previously provided 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
No Solicitation; Other Offers. (a) The From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, except as otherwise expressly set forth in this 6.04, the Company shall not, and shall cause its Subsidiaries not permit to, and shall instruct its and its Subsidiaries’ respective directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish 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, otherwise knowingly cooperate in any way with, or knowingly assist or participate in any effort by any Third Party relating to an Acquisition Proposal or any inquiry, expression of interest, proposal or request for information that would reasonably be expected to lead to an Acquisition Proposal (other than requesting the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or would reasonably be expected to result in, a Superior Proposal), (iii) (A) fail to make, withdraw or modify in a manner adverse to Parent the Company Board Recommendation (it being understood that any failure to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of Parent’s written request will be treated as a withdrawal of the Company Board Recommendation for purposes hereof (provided that Parent makes such request only after a material development has occurred that Parent believes, in good faith, has created public uncertainty as to the position of the Board of Directors of the Company or whether the Company Stockholder Approval will be obtained and that Parent may only make such request once with respect to any Acquisition Proposal that has not been amended with respect to financial or other material terms)), (B) fail to include the Company Board Recommendation in the Proxy Statement or (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Acquisition Proposal (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) take any action to make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 203 of the Delaware Law, inapplicable to any Third Party or any Acquisition Proposal, or (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries. If any Representative takes any action that the Company is obligated pursuant to this Section 6.04 not to take, then the Company shall be deemed for purposes of this Agreement to have breached this Section 6.04. The Company shall, and shall cause any of its 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, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company instruct and its Subsidiaries and its Subsidiaries’ Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions and or negotiations, if any, with any Persons conducted prior to the date hereof Third Party and its Representatives with respect to any Acquisition Proposal and, and shall use its reasonable best efforts to the extent within cause any such Third Party and its power, to recover or cause to be destroyed all Representatives in possession of confidential information concerning about the Company and or any of its Subsidiaries in the possession that was furnished by or on behalf of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Company Board from complying in connection with Rule 14d-9 or Rule 14e-2 under the Exchange Act with respect to any a proposed Acquisition Proposal or making any disclosure inquiry, expression of interest, proposal or request for information that would reasonably be expected to lead to an Acquisition Proposal to return or destroy all such information in accordance with 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 Lawconfidentiality agreements.
(b) Notwithstanding anything contained in Section 6.04(a) to the first sentence of Sections 6.05(acontrary, if at any time prior to obtaining the Company Stockholder Approval (and in no event after obtaining Company Stockholder Approval), prior to (i) the time Board of acceptance Directors 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 receives a bona fide written Acquisition Proposal by such Person to acquire in any manner at least fifty percent made after the date hereof which has not resulted from a breach of this Section 6.04 that the Shares outstanding or fifty percent Board of the consolidated assets Directors 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 its financial advisor and advice from outside legal counsel, that the failure is or is reasonably likely to take such action would cause the Company Board lead to breach its fiduciary duties under applicable Law, a Superior Proposal and (ii) such Person executes a confidentiality agreement in a form no less favorable to the Board of Directors of 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 be reasonably likely to breach be inconsistent with its fiduciary duties under applicable Applicable Law, then the Board of Directors of the Company, may, subject to compliance with this Section 6.04(b), Section 6.04(c) and Section 6.04(e), (A) engage in negotiations or discussions with such Third Party and its Representatives, (B) furnish to such Third Party or its Representatives non-public information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement, a copy of which shall be provided, promptly after its execution, to Parent for informational purposes; provided that the Company shall promptly provide to Parent any such information that is provided to any such Person which was not previously provided to or made available to Parent and (C) following receipt of a Superior Proposal after the date of this Agreement, make an Adverse Recommendation Change. Nothing contained herein shall prevent the Company or the Board of Directors of the Company from (x) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer), or (y) making any legally required disclosure to stockholders with regard to the Transactions or an Acquisition Proposal provided that any Adverse Recommendation Change involving or relating to an Acquisition Proposal may only be made in accordance with the provisions of this Section 6.04(b), Section 6.04(c) and Section 6.04(e) and even if permitted by the foregoing, is subject to the rights of Parent set forth in this Agreement. For the avoidance of doubt, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act shall not be an Adverse Recommendation Change.
(c) Except as permitted by In addition to the second sentence of this Section 6.05(crequirements set forth in Section 6.04(b), neither the Board of Directors of the Company Board nor shall not take any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, its recommendation to its stockholders of the actions referred to in clauses (A) through (C) of Section 1.02 hereof6.04(b) unless the Company shall have first delivered to Parent written notice advising Parent that the Company intends to take such action. The Company shall keep Parent promptly informed, or take on a reasonably current basis, after taking any such action not explicitly permitted by this Agreement that would be inconsistent with its approval of the Offer status and material terms of any discussions and negotiations with the Mergerapplicable Third Party with respect to the Acquisition Proposal. In addition, prior to obtaining the Company Stockholder Approval, the Company shall notify Parent promptly (iibut in no event later one Business Day) approve after receipt by the Company (or recommend, or publicly propose to approve or recommend, any of its Representatives) of any Acquisition Proposal or (iii) cause any request for information relating to the Company or any of its Subsidiaries or for access to enter into the business, properties, assets, books or records of the Company or any letter of intentits Subsidiaries by any Third Party that, agreement to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal, which notice shall be provided in principlewriting and shall identify the relevant Third Party, acquisition agreementto the extent known, commitment or similar agreement related to the material terms and conditions of, any such Acquisition Proposal. The Company shall keep Parent informed, on a reasonably prompt basis (but in no event more than one Business Day after actual receipt), of the status and material terms of any such Acquisition Proposal, (including any material changes thereto) and shall provide to Parent copies of all material correspondence and written materials sent or provided to the Company or any of its Subsidiaries that describes any terms or conditions of any Acquisition Proposal (as well as written summaries of any material oral communications addressing such matters).
(d) Notwithstanding anything in this Agreement to the foregoingcontrary, at any time prior to obtaining the time Company Stockholder Approval (and in no event after the obtaining the Company Stockholder Approval), the Board of acceptance Directors of the Shares for payment pursuant Company may effect an Adverse Recommendation Change involving or relating to a Company Intervening Event if the Offer, Board of Directors of the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 be reasonably likely to breach be inconsistent with its fiduciary duties under applicable Law Applicable Law; provided that (i) the Company shall (A) promptly notify Parent in writing of its intention to take such action (it being understood that such a notification shall not, itself, constitute an Adverse Recommendation Change) and (zB) after negotiate in good faith with Parent (if requested by Parent in writing) for five (5) Business Days have elapsed following such notice regarding any revisions to the Company's delivery terms of this Agreement proposed by Parent, and (ii) the Board of Directors of the Company shall not effect any Adverse Recommendation Change involving or relating to Parent a Company Intervening Event unless, after the five (5) Business Day period described in the foregoing clause (B), the Board of written notice advising Parent Directors of the Company determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law.
(e) Without limiting or affecting Section 6.04(a), Section 6.04(b) or Section 6.04(c), the Board of Directors of the Company shall not make an Adverse Recommendation Change involving or relating to a Superior Proposal unless (i) the Company promptly notifies Parent, in writing at least five (5) Business Days before taking such action, that the Company Board has received intends to take such action, which notice attaches the most current version of any proposed transaction agreement or a Superior Proposal specifying the summary of all material terms and conditions of such Superior Proposal and identifying the Person making identity of the Third Party, (ii) if requested by Parent in writing, during such five (5) Business Day period, the Company have negotiated in good faith with Parent regarding any proposal by Parent to amend the terms of this Agreement in response to such Superior Proposal; provided, however, that Proposal (and the Company shall not enter have instructed its Affiliates and Representatives, including its outside legal counsel and financial advisor, to the extent appropriate, to have engaged in good faith negotiations with Parent and its Representatives) and (iii) after such five (5) Business Day period, the Board of Directors of the Company determines in good faith, taking into an agreement with respect account any written proposal by Parent received during such period to amend the terms of this Agreement, that such Acquisition Proposal continues to constitute a Superior Proposal unless (it being understood and agreed that in the event of any amendment to the principal financial terms or other material terms of any such Superior Proposal, a new written notification from the Company consistent with that described in clause (i) of this Section 6.04(e) shall be required and a new notice period under clause (ii) of this Section 6.04(e) shall commence, during which notice period the Company shall terminate be required to comply with the requirements of this Agreement in accordance with Section 8.01(c)(ii6.04(e) anew, except that such new notice period shall be for two (2) Business Days (as opposed to five (5) Business Days)).
(df) For purposes of As used in this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Intl Fcstone Inc.)
No Solicitation; Other Offers. (a) The Company From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Seller shall not, and shall not permit any cause each of its representatives, the Company and the Company 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 each of its Subsidiaries their respective representatives) not to, directly or indirectly, (i) solicit, initiate 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 submission 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 the Buyer, (as hereinafter definediii) or engage in discussions or negotiations or furnish to any Person other than the Buyer any information with respect that 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 knowingly facilitate take any effort other action regarding any inquiry, expression of interest, proposal or attempt offer that constitutes, or would reasonably be expected to make lead to, an Acquisition Proposal. Any violation , (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 the foregoing restrictions by any equityholders of the Company's representativesSeller, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the CompanyCompany Subsidiaries. The Company Seller shall, and shall cause each of its Subsidiaries representatives and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives each of the Company and its the Company Subsidiaries (and each of their respective representatives) to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement 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 LawProposal.
(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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit Parent agrees that neither it nor any of its Subsidiaries tonor any of the officers and directors of it or its Subsidiaries shall, and that it shall cause its officers, directors and its Subsidiaries’ employees, agents and representatives (including any investment bankersbanker, consultantsattorney, financial advisors, accountants, agents accountant or other representatives advisor retained by it or any of its Subsidiaries for services provided in connection with the transactions contemplated by this Agreement whether as of the Original Merger Agreement Date or any time thereafter) (collectively, “Representatives”) not to, solicitdirectly or indirectly, initiate initiate, solicit or knowingly encourage the submission of or facilitate any Acquisition Proposal Proposal. Parent further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, (as hereinafter definedi) or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions or negotiations or furnish to with, any Person any information with respect relating to an Acquisition Proposal Proposal, or otherwise knowingly encourage or facilitate any effort or attempt to make or implement an Acquisition Proposal. Any violation of the foregoing restrictions by , (ii) amend or grant any of the Company's representatives, whether waiver or not such representative is so authorized and whether release under any standstill or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 similar agreement with respect to any Acquisition Proposal andclass of equity securities of Parent or any of its Subsidiaries (unless the Company’s obligations under the standstill provisions contained in the Confidentiality Agreement dated May 27, to the extent within its power, to recover or cause to be destroyed all information concerning 2005 between the Company and its Subsidiaries Parent (the “Confidentiality Agreement”) are simultaneously waived), (iii) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of the Delaware Law, (iv) amend or grant any waiver or release or approve any transaction or redeem any Parent Rights under the Parent Rights Agreement, (v) make any Adverse Parent Recommendation Change in the possession of such Persons and their affiliatesconnection with an Acquisition Proposal or (vi) enter into any definitive agreement with respect to an Acquisition Proposal; provided, representatives and advisors. Nothing however, that nothing contained in this Agreement shall prevent the Company Parent or its Board of Directors from (1) complying with Rule its disclosure obligations under Sections 14d-9 or Rule 14e-2 under and 14e-2(a) of the Exchange 1934 Act with respect regard to any an Acquisition Proposal or making any Proposal; provided, however, that if such 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)constitutes an Adverse Parent Recommendation Change, the Company may negotiate or otherwise engage shall have the right to terminate this Agreement as set forth in substantive discussions with, Section 10.01(c)(i) of this Agreement; and furnish nonpublic information (2) at any time prior to, any Person but not after, the Parent Stockholder Approval is obtained, (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal by if the Board of Directors of Parent receives from the Person so requesting such Person information, prior to acquire in the provision of 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 faithsuch information, 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 an executed confidentiality agreement in a form on terms no less favorable to Parent than those contained in the Confidentiality Agreement (provided that, such executed confidentiality agreement may contain less favorable standstill provisions as long as the Company’s obligations under the standstill provisions contained in the Confidentiality Agreement are simultaneously waived); (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors of Parent receives from such Person, prior thereto, an executed confidentiality agreement as described in the immediately preceding clause (A); or (C) recommending or making any Adverse Parent Recommendation Change in connection with such an unsolicited bona fide written Acquisition Proposal to the stockholders of Parent, if and only to the extent that, (x) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of Parent determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties, (y) in each case referred to in clause (B) or (C) above, the Board of Directors of Parent determines in good faith (after consultation with its financial advisor and its outside legal counsel) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal, the likelihood of obtaining financing, and the Person making the proposal, and if consummated, would result in a transaction more favorable to Parent’s stockholders from a financial point of view than the transactions contemplated by this Agreement taking into account any change proposed by the Company; and (z) in the case of clause (C), the Company than shall have had written notice of Parent’s intention to take the Confidentiality Agreementaction referred to in clause (C) at least 20 Business Days prior to the taking of such action by Parent (which notice shall have attached the most current version of the agreement relating to the Acquisition Proposal in question and a summary of any other material terms relating thereto) and Parent shall, and shall cause its Representatives to, during such 20 Business Day period, negotiate in good faith with the Company with respect to any changes the Company may wish to make with respect to its proposal; provided, that any more favorable Acquisition Proposal referred to in clause (B) or (C) above must constitute an Acquisition Proposal that involves the acquisition, directly or indirectly, of 50% or more of the voting power of the Parent Stock or the assets of Parent and its Subsidiaries taken as a whole (any such more favorable Acquisition Proposal is referred to in this Agreement as a “Superior Proposal”). Prior Parent agrees that it will immediately cease and cause to providing be terminated any information to or entering into existing activities, discussions or negotiations with any Person in connection conducted prior to the Original Merger Agreement Date with an Acquisition Proposal by such Person, the Company shall notify Parent of respect to any Acquisition Proposal (includingProposal, 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 including any discussions or negotiations with such a third party, and any material changes respect 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 possible sale of the Special Committee after consultation by Flextech Group. Parent agrees that it will take the Special Committee with and advice from its outside legal counsel, that necessary steps to promptly inform the failure individuals or entities referred to take such action would cause in the Company Board to breach its fiduciary duties under applicable Law.
(c) Except as permitted by the second first sentence of this Section 6.05(c), neither 6.08 of the obligations undertaken in this Section 6.08. Parent agrees that it will notify the Company Board nor promptly, but in any committee thereof shall (i) withdraw event within 48 hours if any proposals or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, its recommendation to its stockholders offers referred to in this Section 1.02 hereof6.08 are received by, any such information is requested from, or take any action not explicitly permitted by this Agreement that would such discussions or negotiations are sought to be inconsistent initiated or continued with, it or any of its Representatives indicating, in connection 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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offersuch notice, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance name of the Offer and/or approval such Person 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 any proposals or offers and identifying the Person making the Superior Proposal; provided, however, that thereafter shall keep the Company shall not enter into an agreement informed on a current basis, and, in any event, within 24 hours of any changes in the status, the terms and any other material details of any such proposals or offers, including whether any such proposal has been withdrawn or rejected. Parent also agrees to provide any information to the Company that it is providing to another Person pursuant to this Section 6.08 at substantially the same time it provides it to such other Person. Parent agrees promptly, but in any event within five days after the Original Merger Agreement Date, to request the return or destruction of all information and materials provided prior to the Original Merger Agreement Date by it, its Affiliates or their respective Representatives (and any information derived therefrom) with respect to a Superior the consideration or making of any Acquisition Proposal unless (including with respect to the Company possible sale of the Flextech Group) and Parent shall terminate otherwise use its reasonable best efforts to enforce any confidentiality agreement relating thereto. The parties agree that in determining what actions are necessary for the Board of Directors of Parent to comply with their respective fiduciary duties, the Board of Directors may consider the transactions contemplated by this Agreement in accordance with Section 8.01(c)(iito be structured as they were under the Original Merger Agreement (except to the extent that the structure under this Agreement eliminates the need for consents of Third Parties).
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The Subject to Section 6.02(b), until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company shall not, and shall not permit nor any of its Subsidiaries toshall, and nor shall cause its officers, directors and employees, and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it the Company or any of its Subsidiaries not authorize or knowingly permit any of its or their respective directors, officers, employees, investment bankers, attorneys, accountants, consultants or other advisors or representatives (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) enter into or engage participate in any discussions or negotiations or with, furnish to any Person any information with respect 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 knowingly cooperate in any way with, any Third Party, in each case, relating to an Acquisition Proposal or knowingly facilitate any effort inquiry, proposal or attempt request that would reasonably be expected to make lead to an Acquisition Proposal. Any violation , (iii) (A) fail to make, withdraw, qualify or modify, or propose publicly to withhold, withdraw, qualify or modify, the Company Board Recommendation (or recommend an Acquisition Proposal), (B) fail to publicly recommend against any publicly disclosed Acquisition Proposal (other than a tender offer or exchange offer) within ten (10) Business Days after Parent so requests in writing, or (C) fail to publicly recommend against any Acquisition Proposal structured as a tender offer or exchange offer within ten (10) Business Days after the commencement thereof or take any public supportive position in connection with a tender or exchange offer (any of the foregoing restrictions by in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any waiver or amendment or release under any standstill or confidentiality agreement; provided that the foregoing clause (iv) shall not prohibit the Company or any of its Subsidiaries from amending, modifying or granting any waiver or release under any standstill, confidentiality or similar agreement of the Company's representativesCompany or any of its Subsidiaries or (v) enter into any agreement in principle, whether letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or not other similar instrument relating to an Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (any such representative is so authorized agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal, an “Alternative Acquisition Agreement”) (or announce any intention to do so). Subject to Section 6.02(b), the Company shall, and whether shall use its reasonable best efforts to cause its Subsidiaries and its and their Representatives to, promptly cease and cause to be terminated any and all existing discussions or not negotiations in effect as of the date hereof, if any, with any Third Party and its Representatives with respect to any Acquisition Proposal. The Company shall promptly (and in any event within five (5) Business Days of the date hereof) request that each Third Party that has executed a confidentiality agreement within the 24-month period prior to the date hereof in connection with its consideration of any Acquisition Proposal return or destroy all confidential information pursuant to such representative is purporting confidentiality agreement heretofore furnished to act such Person by or on behalf of the Company or otherwiseany of its Subsidiaries, and the Company shall confirm to Parent the receipt of all certifications of such return or destruction from such other Persons as promptly as practicable after such receipt thereof. The Company shall use its reasonable best efforts to secure all such certifications as promptly as practicable.
(b) In addition, nothing contained herein shall prevent the Company or the Board of Directors of the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer) or from making any legally required disclosure to stockholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal (provided that neither the Company nor its Board of Directors may make an Adverse Recommendation Change) or (ii) issuing a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act.
(c) The Company shall notify Parent promptly (and in any event within 24 hours) after receipt by the Company (or any of its Representatives) of any Acquisition Proposal, or any request for non-public information relating to the Company or any of its Subsidiaries or for access to the personnel, business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party, in each case, that would reasonably be expected to make, or has made, an Acquisition Proposal, which notice shall include the material terms and conditions of any such Acquisition Proposal or request, the identity of the Third Party making such Acquisition Proposal and unredacted copies of the Acquisition Proposal and all related documents (including all financing commitments and other documents relating to any financing), and if such Acquisition Proposal or any portion thereof was not provided in writing, a summary of the material terms and conditions thereof.
(d) Any breach of this Section 6.02 by any director, officer or Representative of the Company or any of its Subsidiaries will be deemed to be a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
Samples: Merger Agreement (Paychex Inc)
No Solicitation; Other Offers. (a) The From the date hereof until the termination hereof, the Company shall will not, and shall not permit any of will cause its Subsidiaries to, and shall cause its the officers, directors and directors, employees, and any investment bankers, consultants, financial advisorsattorneys, accountants, consultants or other agents or other representatives retained by it or any advisors of the Company and its Subsidiaries not to, directly or indirectly, (i) take any action to solicit, initiate initiate, facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) or engage in discussions or negotiations with, or furnish 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, any Person who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal, or (iii) grant any information 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 is considering making an Acquisition Proposal or knowingly facilitate any effort request for nonpublic information relating to the Company or attempt any of its Subsidiaries or for access to make the properties, books or records of the Company or any of its Subsidiaries by any Person who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal. Any violation 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, indication or request. The Company shall keep Parent fully informed, on a current basis, of any material changes in the foregoing restrictions by status or details of any of the Company's representativessuch Acquisition Proposal, whether indication or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyrequest. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisorsProposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange 1934 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 LawProposal.
(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)foregoing, the Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to who delivers 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 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 Acquisition Proposal, (ii) the Board of Directors of the Company Board determines in good faithfaith by a majority vote, upon on the recommendation basis 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 its outside legal counsel, that the failure to take such action would cause the Company Board to breach that, consistent with its fiduciary duties under applicable Lawlaw, and it must take such action, (iiiii) such Person executes a confidentiality agreement in a form with terms no less favorable to the Company than those contained in 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, and (iv) 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 have 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, Parent two business days' prior written notice advising Parent that the failure it intends to take such action would cause the Company Board to breach its fiduciary duties under applicable Lawaction.
(c) Except as permitted by the second sentence The Board of this Section 6.05(c), neither Directors of the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 stockholders shareholders referred to in Sections 2.02 and 7.02 hereof, but only if (i) the Company has complied with the terms of this Section 1.02 hereof7.04, including, without limitation, the requirement in Section 7.04(a) that it notify Parent promptly after its receipt of any Acquisition Proposal, (ii) a Superior Proposal is pending at the time the Board of Directors determines to take any such action, (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 of Directors determines in good faithfaith by a majority vote, upon on the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) the Company Board determines in good faith, upon the recommendation basis of the Special Committee after consultation by the Special Committee with and advice from of its outside legal counsel, that the failure to take such action would cause the Company Board to breach that, consistent with its fiduciary duties under applicable Law law, it must take such action, and (ziv) after five Business Days the Company shall have elapsed following the Company's delivery delivered to Parent of two business days' prior written notice advising Parent that the Company Board has received a Superior Proposal specifying the material terms and conditions of it intends to take 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) 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 Company determines in good faith by a majority vote is materially more favorable and provides materially greater value to all the Company's shareholders than as provided hereunder, and such decision is made on the basis of the written 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) The Subject to Section 7.03(b), the Company shall not, and shall cause its Subsidiaries and its and their officers and directors, and shall direct and use reasonable best efforts to cause its employees, investment bankers, attorneys, accountants, consultants and other agents, advisors or representatives (collectively, "Representatives") not permit to, directly or indirectly, (i) solicit, initiate, or knowingly facilitate or encourage the submission of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish 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, and otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation (it being understood that taking a neutral position or no position with respect to any Acquisition Proposal, other than a statement contemplated by Rule 14d-9(f) under the 1934 Act during the initial period of ten (10) business days following the commencement of the Acquisition Proposal, shall cause its officersbe considered an adverse modification, directors and employeesrecommend, and adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal), or take any investment bankersaction or make any statement inconsistent with the Company Board Recommendation (any of the foregoing in this clause (iii), consultantsan "Adverse Recommendation Change"), financial advisors, accountants, agents (iv) grant any waiver or other representatives retained by it release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries not toor (v) enter into any agreement in principle, solicitletter of intent, initiate term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or encourage the submission of any Acquisition Proposal (as hereinafter defined) other similar instrument constituting or engage in discussions or negotiations or furnish to any Person any information with respect relating to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions and or negotiations, if any, with any Persons Third Party conducted prior to the date hereof of this Agreement with respect to any Acquisition Proposal and, and shall use its reasonable best efforts to the extent within cause any such Third Party (or its power, to recover agents or cause to be destroyed all advisors) in possession of confidential information concerning about the Company and its Subsidiaries in the possession that was furnished by or on behalf 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 to return or Rule 14e-2 under destroy all such information. During the Exchange Act with respect term of this Agreement, the Company shall not take any actions to make any state takeover statute (including any Delaware state takeover statute) or similar statute inapplicable 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 LawProposal.
(b) Notwithstanding the first sentence of Sections 6.05(a)foregoing, at any time prior to the time adoption of acceptance this Agreement by Company's stockholders (and in no event after the adoption of Shares pursuant this Agreement by Company's stockholders), the board of directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, subject to the Offer and compliance with Section 7.03(c), (i) engage in negotiations or discussions with any Third Party that, subject to the provisions Company's compliance with Section 7.03(a) has made after the date of this Section 6.05(b) and Section 6.05(c), the Company may negotiate Agreement a Superior Proposal 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 that the board of the Shares outstanding or fifty percent of the consolidated assets directors of the Company if reasonably believes (after considering the advice of a financial advisor of nationally recognized reputation and outside legal counsel) is reasonably likely to lead to a Superior Proposal, (ii) thereafter furnish to such Third Party nonpublic information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (a copy of which shall be provided, promptly after its execution, for informational purposes only to Parent); provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Third Party) and (iii) make an Adverse Recommendation Change, but in each case referred to in the foregoing clauses (i) a majority through (iii) only if the board of directors 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 faith by a Superior Proposal (as hereinafter defined) andmajority vote, after consultation with and considering advice from outside legal counselcounsel to the Company, that the failure to take such action would cause the Company Board to breach more likely than not be inconsistent with its fiduciary duties under applicable Applicable Law, and (ii) such Person executes a confidentiality agreement in a form no less favorable to . Nothing contained herein shall prevent the board of directors of the Company than from complying with requirements of Rule 14e-2(a) and Rule 14d-9 under the Confidentiality Agreement. Prior 1934 Act with regard to providing any information to or entering into discussions or negotiations with any Person in connection with an Acquisition Proposal by Proposal, so long as any action taken or statement made to so comply is consistent with this Section 7.03; provided, that such Person, requirement will in no way eliminate or modify the effect that any action pursuant to such requirement would otherwise have under this Agreement.
(c) The Board of Directors of the Company shall not take any of the actions referred to in clauses (i) through (iii) of Section 7.03(b) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. 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 event later than 24 hours) after receipt by the Company (or any of its receipt thereof, and shall provide Parent with a copy Representatives) of any written Acquisition Proposal, any indication that a Third Party is considering making an Acquisition Proposal or amendments of any request for information relating to the Company or supplements theretoany of its Subsidiaries or for access to the business, and shall thereafter inform Parent on a prompt basis properties, assets, books or records of the status Company or any of its Subsidiaries by any discussions Third Party that may be considering making, or negotiations with such a third partyhas made, and any material changes to the terms and conditions of such an Acquisition Proposal, which notice shall be provided orally and in writing 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 identify the Company is a party or to which the Company is subject unless the Company Board determines in good faithThird Party making, 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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, any such Acquisition Proposal, indication or request (including any changes thereto). The Company shall keep Parent fully informed, on a current basis, of the status and significant details of any such Superior Proposal Acquisition Proposal, indication or request and identifying the Person making the Superior Proposal; provided, however, that shall promptly (but in no event later than 24 hours after receipt) provide to Parent copies of all significant correspondence and written materials sent or provided to 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)or any of its Subsidiaries that describes any terms or conditions of any Acquisition Proposal.
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The Until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, neither the Company shall notnor Indigo shall, and each shall not permit any cause each of its 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 Representatives not to, directly or indirectly, (i) solicit, initiate or encourage, or take any action to solicit, initiate or encourage any inquiries, announcements or communications relating to, or the submission 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 Parent, (as hereinafter definediii) or engage in discussions or negotiations or furnish to any Person other than Parent any information with respect that Indigo believes or should reasonably know would 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 or knowingly facilitate (iv) accept any effort Acquisition Proposal or attempt enter into any agreement, arrangement or understanding providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to make an any Acquisition Proposal. Any violation Each of Indigo and the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause each of its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries Representatives to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement with respect to any Acquisition Proposal andProposal. Indigo shall, to the extent within its powertwo business (2) days after receipt, to recover advise Parent of (A) any formal or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession informal inquiry, expression of such Persons and their affiliatesinterest, representatives and advisors. Nothing contained in this Agreement shall prevent the Company Board from complying with Rule 14d-9 proposal 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 offer relating 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 Proposal, (iB) 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 thereto and conditions thereof and (C) the identity of the Person or group making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereofsuch inquiry, and shall provide Parent with a copy expression of any written Acquisition Proposal interest, 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 Lawoffer.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
No Solicitation; Other Offers. (a) The From the date hereof until the termination hereof, the Company shall will not, and shall not permit any of will cause its Subsidiaries to, and shall cause its the officers, directors and directors, employees, and any investment bankers, consultants, financial advisorsattorneys, accountants, consultants or other agents or other representatives retained by it or any advisors of the Company and its Subsidiaries not to, directly or indirectly, (i) take any action to solicit, initiate initiate, facilitate or encourage the submission of any Acquisition Proposal Proposal, (ii) except as hereinafter defined) or permitted in Section 7.4(b), engage in discussions or negotiations with, or furnish 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, any Person any information with respect who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal or knowingly facilitate any effort inquiries or attempt the making of any proposal that constitutes, or may reasonably be expected to make lead to, any Acquisition Proposal, or (iii) 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 is considering making an Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any Person who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal. Any violation 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, indication or request. The Company shall keep Parent fully informed, on a current basis, of any material changes to the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyterms thereof. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 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 LawProposal.
(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)foregoing, 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 who delivers a Superior 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 faithhas complied with the terms of this Section 7.4, 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 itrequirement in Section 7.4(a) as that it notify Parent 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 (ii) the Board 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 Directors of the Company is a party or to which the Company is subject unless the Company Board determines in good faithfaith by a majority vote, upon on the recommendation basis 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 consistent with its fiduciary duties under applicable Lawlaw, it must take such action, (iii) such Person 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 action and (v) the Offer shall not have closed.
(c) Except as permitted by the second sentence The Board of this Section 6.05(c), neither Directors of the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 approval and recommendation to its stockholders shareholders referred to in Sections 2.2 and 7.2 hereof, but only if (i) the Company has complied with the terms of this Section 1.02 hereof7.4, including, without limitation, the requirement in Section 7.4(a) that it notify Parent promptly after its receipt of any Acquisition Proposal, (ii) a Superior Proposal is pending at the time the Company's Board of Directors determines to take any such action, (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 Company's Board of Directors determines in good faithfaith by a majority vote, upon on the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) the Company Board determines in good faith, upon the recommendation basis of the Special Committee after consultation by the Special Committee with and advice from of its outside legal counsel, that the failure to take such action would cause the Company Board to breach consistent with its fiduciary duties under applicable Law law, it must take such action and (ziv) after five Business Days the Company shall have elapsed following the Company's delivery delivered to Parent of four business days' prior written notice advising Parent that the Company Board has received a Superior Proposal specifying the material terms and conditions of it intends to take 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) action. For purposes of this Agreement:, "Superior Proposal" means any bona fide, unsolicited written Acquisition Proposal for 50% or more of the outstanding Shares on terms that the Board of Directors of the Company determines in good faith by a majority vote is more favorable and provides greater value to the Company's shareholders than as provided hereunder, and such decision is made on the basis of the 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. 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) The From the date hereof until the termination hereof, the Company shall will not, and shall not permit any of will cause its Subsidiaries to, and shall cause its the officers, directors and directors, employees, and any investment bankers, consultants, financial advisorsattorneys, accountants, consultants or other agents or other representatives retained by it or any advisors of the Company and its Subsidiaries not to, directly or indirectly, (i) take any action to solicit, initiate initiate, facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) or engage in discussions or negotiations with, or furnish disclose any nonpublic information relating to any Person any information with respect to an Acquisition Proposal the Company or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation of the foregoing restrictions by any of its Subsidiaries or afford access to the Company's representativesproperties, whether books or not such representative is so authorized and whether or not such representative is purporting to act on behalf records of the Company or otherwiseany of its Subsidiaries to, shall any Person who the Company has reason to believe may be deemed a breach considering making, or has made, an Acquisition Proposal, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of this Agreement equity securities of the Company. The Company will notify Parent promptly after receipt by the CompanyCompany (or any of its advisors) of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any Person who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisorsProposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange 1934 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 LawProposal.
(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)foregoing, 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 who delivers a 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 two (2) business days prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company provides written 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 such discussion or negotiations, (iii) the Board of Directors of the Company Board determines in good faithfaith by a majority vote, upon on the recommendation basis 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 its outside legal counsel, that the failure to take such action would cause the Company Board to breach that, consistent with its fiduciary duties under applicable Lawlaw, and it must take such action, (iiiv) such Person executes a confidentiality agreement in a form 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 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 timely basis. Prior to providing Parent will not disclose any information received 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 entering into discussions or negotiations with any Person Persons considering providing financing to Parent in connection with an Acquisition Proposal by such Personthe Transactions, 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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 including the Offer and the Merger, and except for such disclosures required in 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 (iix) approve or recommendpermit the Company to terminate this Agreement (except as specifically provided in Section 11.01), or publicly propose to approve or recommend, any Acquisition Proposal or (iiiy) cause permit the Company to enter into any letter of intent, written agreement with respect to an Acquisition Proposal for so long as this Agreement remains in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares effect (it being agreed that for payment pursuant to the Offerso 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 Company under this Agreement.
(c) The Board of Directors of the Company shall be permitted (i) not to recommend to its stockholders 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 stockholders referred to in Section 1.02 Sections 2.01 and 7.02 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 (xi) the Company has received an 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 Superior Proposal which consistent with the Company conditions of 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 faithfaith by a majority vote, upon on the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) the Company Board determines in good faith, upon the recommendation basis of the Special Committee after consultation by the Special Committee with and advice from of its outside legal counsel, that the failure to take such action would cause the Company Board to breach that, consistent with 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 law, it must take 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)action.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Inamed Corp)
No Solicitation; Other Offers. From the Agreement Date until the Acceptance Time, LaCrosse has agreed that (ai) The Company shall it will not, and shall not permit any of its Subsidiaries to, and shall will 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, and (ii) it will cause its subsidiaries and controlled affiliates and their respective officers, directors and representatives not to, directly or indirectly: • solicit, initiate initiate, encourage, facilitate or encourage induce the submission of any an Acquisition Proposal (as hereinafter defineddefined below) by a third party or engage take any action that could reasonably be expected to result in an Acquisition Proposal from a third party; • enter into, continue or participate in discussions or negotiations or furnish to any Person any information with respect to an Acquisition Proposal or knowingly take any action to facilitate or induce any effort or attempt to make or implement an Acquisition Proposal. Any violation ; • except as required by applicable law, provide any person (other than ABC-MART, Purchaser or their respective designees) with any non-public information relating to LaCrosse or any of the foregoing restrictions by its subsidiaries or access to any of the Company's representativesbusiness, whether properties, assets, books or not such representative is so authorized and whether records of LaCrosse or not such representative is purporting any of its subsidiaries; • approve or recommend an Acquisition Proposal or other document contemplating an Acquisition Proposal or requiring LaCrosse to act on behalf abandon or terminate its obligations under the Merger Agreement; • terminate, amend, modify or waive any rights under any standstill or similar agreements; or • resolve, propose or agree to do any of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyforegoing. The Company shallLaCrosse has agreed that it will, and shall will cause its Subsidiaries subsidiaries and the its and their respective officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other directors and representatives of the Company and its Subsidiaries to, immediately cease immediately and cause to be terminated all activities, any activities or discussions and negotiations, if any, with any Persons person previously conducted with respect to an Acquisition Proposal and to promptly deny access to any data room containing any confidential information previously furnished to any third party relating to the consideration of any Acquisition Proposal. As an exception to the restrictions described above, at any time prior to the date hereof Acceptance Time, LaCrosse may engage or participate in discussions or negotiations with a person and its representatives, and provide confidential information 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 LaCrosse and its Subsidiaries in the possession of subsidiaries to 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 person pursuant to the Offer a confidentiality agreement with customary confidentiality and subject to the provisions standstill provisions, but not providing for reimbursement by LaCrosse of this Section 6.05(b) and Section 6.05(c)any fees, the Company may negotiate costs or otherwise engage in substantive discussions withexpenses, and furnish nonpublic information to, any Person in response to an unsolicited if: • that person has made a bona fide written Acquisition Proposal by such Person to acquire in any manner at least fifty percent of that the Shares outstanding or fifty percent of the consolidated assets of the Company if (i) a majority of the Company LaCrosse Board determines in good faith, upon the recommendation after consulting with its outside counsel and a financial advisor of the Special Committee after the Special Committee has received the advice of Xxxxxxxx Xxxxx or another nationally recognized financial advisorreputation, that such Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal (as hereinafter defined) anddefined below); • LaCrosse received the Acquisition Proposal other than as a result of a breach or violation of the no solicitation provisions of the Merger Agreement described above; • the LaCrosse Board has determined in good faith, after consultation consulting with and advice from its outside legal counsel, that the failure to take such action would cause the Company Board or would be reasonably likely to be a breach of its fiduciary duties under applicable Lawobligations to LaCrosse’s shareholders; • contemporaneously with furnishing any confidential information to such person, LaCrosse furnishes such confidential information to ABC-MART (to the extent such information has not been previously furnished to ABC-MART); and • LaCrosse has provided ABC-MART with written notice of its intent to take such action and the basis for such action at least 48 hours prior to taking such action. In addition, LaCrosse has agreed to promptly, and (ii) such Person executes a confidentiality agreement in a form no less favorable to all cases within 24 hours of the Company than the Confidentiality Agreement. Prior to providing any receipt of an Acquisition Proposal, advise ABC-MART orally and in writing of LaCrosse’s receipt of an Acquisition Proposal or request for information to or entering into discussions or negotiations with any Person other inquiry in connection with or that could reasonably be expected to lead to an Acquisition Proposal by and 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 notice must include the terms and conditions of such Acquisition Proposal, the Table of Contents identity of the person making the Acquisition Proposal and shall promptly give Parent a copy the nature of any information delivered inquiries or contacts. LaCrosse has also agreed 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 keep ABC-MART informed of the Special Committee after consultation by status of all developments affecting 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 any such Superior Acquisition Proposal. LaCrosse must also provide ABC-MART with 36 hours prior written notice of any meeting of the LaCrosse Board at which the LaCrosse Board is expected to consider an Acquisition Proposal and identifying or a change in the Person making the Superior Proposal; provided, however, that the Company shall LaCrosse Board Recommendation. LaCrosse may not enter into an any agreement (other than a confidentiality agreement) with respect to a Superior an Acquisition Proposal unless and until the Company shall terminate this Merger Agreement is terminated in accordance with Section 8.01(c)(ii)its terms and LaCrosse pays any applicable Termination Fee (as defined below) to ABC-MART.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Offer to Purchase (Abc-Mart, Inc.)
No Solicitation; Other Offers. (a) The Company During the Pre-Closing Period, Seller shall not, and shall not permit any cause each of its 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 Representatives not to, directly or indirectly, (a) solicit, initiate 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 submission making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (b) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Purchaser, (as hereinafter definedc) or engage in discussions or negotiations or furnish to any Person other than Purchaser any information with respect that Seller believes or should reasonably know would 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 or knowingly facilitate (d) accept any effort Acquisition Proposal or attempt 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 make an any Acquisition Proposal. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company Seller shall, and shall cause each of its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries Representatives to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement with respect to any Acquisition Proposal andProposal, 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, to the extent within its power, to recover not prohibited by the terms of any confidentiality or cause to be destroyed all information concerning the Company and its Subsidiaries non-disclosure agreement 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 existence as of the majority date hereof, Purchaser with: (y) an oral and a written description of the members any expression of the Company Boardinterest, upon recommendation of the Special Committee after consultation with and advice from its outside legal counselinquiry, is required by applicable Law.
(b) Notwithstanding the first sentence of Sections 6.05(a)proposal or offer relating to a possible Acquisition Proposal, 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 any request for 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 could reasonably be expected to result in be used for the purposes of formulating any inquiry, proposal or offer regarding a Superior Proposal (as hereinafter defined) and, after consultation with and advice from outside legal counselpossible Acquisition Proposal, that the failure to take such action would cause the Company Board to breach is received by Seller or 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 Representatives from 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 including in such description the identity of the Person making it) as promptly as practicable from which such expression of interest, inquiry, proposal, offer or request for information was received (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.
(c) Except as permitted by the second sentence of this Section 6.05(c“Other Interested Party”), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (z) after five Business Days have elapsed following a copy of each written communication and a complete summary of each other communication transmitted on behalf of the Company's delivery Other Interested Party or any of the Other Interested Party’s Representatives to Parent Seller or its Representatives or transmitted on behalf of written notice advising Parent that Seller or its Representatives to the Company Board has received a Superior Proposal specifying Other Interested Party or any of 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)Other Interested Party’s Representatives.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Asset Purchase Agreement (Maxwell Technologies Inc)
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit any of its Subsidiaries to, and shall cause use its best efforts to ensure that its officers, directors and or employees, and or any investment bankers, consultants, financial advisors, accountants, agents consultants or other representatives agents retained by it or any of its Subsidiaries not toto not, solicit, initiate or initiate, encourage the submission of any Acquisition Proposal (as hereinafter defined) or engage in discussions or negotiations or furnish to any Person person any information with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation The Company will notify Parent within 48 hours of receipt by the foregoing restrictions 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's representatives, whether is making or not considering making or who has made, an Acquisition Proposal. The Company shall provide such representative is so authorized notice orally and whether in writing including the terms and conditions of any such Acquisition Proposal or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyrequest. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons persons conducted prior to 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 persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of 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 thatif, in the good faith judgment of the majority of the disinterested members of the Company Board, upon recommendation Board of Directors of the Special Committee after consultation Company, failure to so disclose would be inconsistent with their fiduciary duties and advice from its outside legal counsel, is required by violative of applicable Lawlaw.
(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(c5.2(a), the Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person 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 person if (1) the Company if has complied with the terms of this Section 5.2, (i2) a majority of the Board of Directors of the Company Board reasonably 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, faith that such Acquisition Proposal would could 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 could reasonably be deemed to constitute a breach of its fiduciary duties under applicable Lawlaw, and (ii3) such Person person executes a confidentiality agreement in a substantially the form no less favorable to the Company than of 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, Agreement (as defined below) (including 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 Lawprovisions).
(c) Except as permitted by the second sentence of this Section 6.05(c5.2(c), neither the Board of Directors of the Company Board nor any committee thereof shall (i1) 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 with, its approval of the Offer and the Merger, (ii2) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii3) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement, commitment agreement or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time The Board of acceptance Directors of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i1) not to recommend to its stockholders shareholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii2) to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders shareholders referred to in Section 1.02 1.2 hereof, (iii3) to approve or recommend any Superior Proposal or (iv4) 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 complied with the Company Board determines in good faith, upon the recommendation terms of a nationally recognized financial advisor, constitutes a Superior Proposalthis 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 (z) the Board of Directors of the Company 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 could reasonably be deemed to breach be inconsistent with 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)law.
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The Subject to Section 7.03(b), the Company shall not, and shall cause its Subsidiaries and its and their officers and directors, and shall direct and use reasonable best efforts to cause its employees, investment bankers, attorneys, accountants, consultants and other agents, advisors or representatives (collectively, “Representatives”) not permit to, directly or indirectly, (i) solicit, initiate, or knowingly facilitate or encourage the submission of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish 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, and otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation (it being understood that taking a neutral position or no position with respect to any Acquisition Proposal, other than a statement contemplated by Rule 14d-9(f) under the 1934 Act during the initial period of ten (10) business days following the commencement of the Acquisition Proposal, shall cause its officersbe considered an adverse modification, directors and employeesrecommend, and adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal), or take any investment bankersaction or make any statement inconsistent with the Company Board Recommendation (any of the foregoing in this clause (iii), consultantsan “Adverse Recommendation Change”), financial advisors, accountants, agents (iv) grant any waiver or other representatives retained by it release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries not toor (v) enter into any agreement in principle, solicitletter of intent, initiate term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or encourage the submission of any Acquisition Proposal (as hereinafter defined) other similar instrument constituting or engage in discussions or negotiations or furnish to any Person any information with respect relating to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions and or negotiations, if any, with any Persons Third Party conducted prior to the date hereof of this Agreement with respect to any Acquisition Proposal and, and shall use its reasonable best efforts to the extent within cause any such Third Party (or its power, to recover agents or cause to be destroyed all advisors) in possession of confidential information concerning about the Company and its Subsidiaries in the possession that was furnished by or on behalf 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 to return or Rule 14e-2 under destroy all such information. During the Exchange Act with respect term of this Agreement, the Company shall not take any actions to make any state takeover statute (including any Delaware state takeover statute) or similar statute inapplicable 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 LawProposal.
(b) Notwithstanding the first sentence of Sections 6.05(a)foregoing, at any time prior to the time adoption of acceptance this Agreement by Company’s stockholders (and in no event after the adoption of Shares pursuant this Agreement by Company’s stockholders), the board of directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, subject to the Offer and compliance with Section 7.03(c), (i) engage in negotiations or discussions with any Third Party that, subject to the provisions Company’s compliance with Section 7.03(a) has made after the date of this Section 6.05(b) and Section 6.05(c), the Company may negotiate Agreement a Superior Proposal 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 that the board of the Shares outstanding or fifty percent of the consolidated assets directors of the Company if reasonably believes (after considering the advice of a financial advisor of nationally recognized reputation and outside legal counsel) is reasonably likely to lead to a Superior Proposal, (ii) thereafter furnish to such Third Party nonpublic information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (a copy of which shall be provided, promptly after its execution, for informational purposes only to Parent); provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Third Party) and (iii) make an Adverse Recommendation Change, but in each case referred to in the foregoing clauses (i) a majority through (iii) only if the board of directors 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 faith by a Superior Proposal (as hereinafter defined) andmajority vote, after consultation with and considering advice from outside legal counselcounsel to the Company, that the failure to take such action would cause the Company Board to breach more likely than not be inconsistent with its fiduciary duties under applicable Applicable Law, and (ii) such Person executes a confidentiality agreement in a form no less favorable to . Nothing contained herein shall prevent the board of directors of the Company than from complying with requirements of Rule 14e-2(a) and Rule 14d-9 under the Confidentiality Agreement. Prior 1934 Act with regard to providing any information to or entering into discussions or negotiations with any Person in connection with an Acquisition Proposal by Proposal, so long as any action taken or statement made to so comply is consistent with this Section 7.03; provided, that such Person, requirement will in no way eliminate or modify the effect that any action pursuant to such requirement would otherwise have under this Agreement.
(c) The Board of Directors of the Company shall not take any of the actions referred to in clauses (i) through (iii) of Section 7.03(b) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. 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 event later than 24 hours) after receipt by the Company (or any of its receipt thereof, and shall provide Parent with a copy Representatives) of any written Acquisition Proposal, any indication that a Third Party is considering making an Acquisition Proposal or amendments of any request for information relating to the Company or supplements theretoany of its Subsidiaries or for access to the business, and shall thereafter inform Parent on a prompt basis properties, assets, books or records of the status Company or any of its Subsidiaries by any discussions Third Party that may be considering making, or negotiations with such a third partyhas made, and any material changes to the terms and conditions of such an Acquisition Proposal, which notice shall be provided orally and in writing 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 identify the Company is a party or to which the Company is subject unless the Company Board determines in good faithThird Party making, 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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, any such Acquisition Proposal, indication or request (including any changes thereto). The Company shall keep Parent fully informed, on a current basis, of the status and significant details of any such Superior Proposal Acquisition Proposal, indication or request and identifying the Person making the Superior Proposal; provided, however, that shall promptly (but in no event later than 24 hours after receipt) provide to Parent copies of all significant correspondence and written materials sent or provided to 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)or any of its Subsidiaries that describes any terms or conditions of any Acquisition Proposal.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Kbw, Inc.)
No Solicitation; Other Offers. (a) The From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, subject to Section 6.03(b), Section 6.03(c) and Section 6.03(e), the Company shall not, and shall cause its Subsidiaries not permit to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, intermediaries and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate (it being understood and agreed that ministerial acts that are not otherwise prohibited by this Section 6.03 (such as answering unsolicited phone calls) shall not be deemed to “facilitate” for purposes of this Section 6.03(a)) or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish 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, and otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal or (iii) (A) withdraw (or modify in a manner adverse to Parent) the Company Board Recommendation (it being understood that failure to issue a press release that reaffirms the Company Board Recommendation within five Business Days of the date any Acquisition Proposal or any material modification thereto is publicly disclosed shall cause its officersbe considered an adverse modification), directors and employees(B) fail to include the Company Board Recommendation in the Company Proxy Statement or (C) recommend, and adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal (any investment bankersof the foregoing in this clause (iii), consultantsan “Adverse Recommendation Change”) or (iv) approve any transaction under, financial advisorsor any Person becoming an “interested stockholder” under, accountantsSection 203 of the Delaware Law. Without limiting the generality of the foregoing, agents or other representatives retained it is agreed that any violation of the restrictions on the Company set forth in the preceding sentence by it any Representative of the Company or any of its Subsidiaries not to, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement Section by the Company. The Company shall, (it being understood and agreed that any such violation shall cause its Subsidiaries and be determined as if such Representative is bound by the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives terms 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 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 LawSection 6.03(a)).
(b) Notwithstanding the first sentence of Sections 6.05(a)foregoing, at any time prior to the time of acceptance of Shares pursuant to the Offer approval and subject to the provisions adoption of this Section 6.05(b) Agreement by the Company’s stockholders (and Section 6.05(cin no event after the approval and adoption of this Agreement by the Company’s stockholders), the Company Board of Directors of the Company, directly or indirectly through its Representatives may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, (x) contact any Person in response to Third Party that has made after the date of this Agreement an unsolicited bona fide written Acquisition Proposal by such Person in order to acquire in any manner at least fifty percent ascertain facts or clarify terms for the sole purpose of the Shares outstanding or fifty percent Board of the consolidated assets Directors of the Company if informing itself about such Acquisition Proposal and such Third Party and (y) subject to compliance with this Section 6.03(b), Section 6.03(c) and Section 6.03(e), (i) engage in negotiations or discussions with any Third Party that, subject to the Company’s compliance with Section 6.03(a), has made after the date of this Agreement a majority Superior Proposal or an unsolicited bona fide written Acquisition Proposal that the Board of Directors of the Company Board determines in good faith, upon after consultation with its financial advisor and outside legal counsel, is reasonably likely to lead to a Superior Proposal, (ii) thereafter furnish to such Third Party and its Representatives and financing sources nonpublic information relating to the recommendation Company or any of its Subsidiaries pursuant to a confidentiality agreement (which confidentiality agreement shall not include any provision requiring exclusive negotiations with such Third Party) with confidentiality terms no less favorable to the Special Committee Company than those contained in the Confidentiality Agreement, a copy of which shall be provided, promptly after its execution, to Parent for informational purposes; provided that all such non-public information (to the Special Committee has received the advice of Xxxxxxxx Xxxxx or another nationally recognized financial advisor, extent that such Acquisition Proposal would reasonably be expected information has not been previously provided or made available to result in Parent) is provided or made available to Parent, as the case may be, promptly (but no later than one Business Day) after or substantially concurrently with the time it is provided or made available to such Third Party) and (iii) following receipt of a Superior Proposal after the date of this Agreement, (1) make an Adverse Recommendation Change and/or (2) terminate this Agreement to enter into a definitive agreement providing for such Superior Proposal (provided that the Company may not terminate this Agreement pursuant to the foregoing clause (2), and any purported termination pursuant to the foregoing clause (2) shall be void and of no force or effect, unless in advance of or concurrently with such termination the Company pays the Termination Fee in accordance with Section 10.03(d)), but in each case referred to in the foregoing clauses (i) through (iii) only if the Board of Directors of the Company determines in good faith after consultation with outside legal counsel to the Company, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law. Nothing contained herein shall prevent the Board of Directors of the Company from (x) complying with Rule 14e-2(a) under the 1934 Act with regard to an Acquisition Proposal, so long as hereinafter definedany action taken or statement made to so comply is consistent with this Section 6.03, provided that (subject to the following sentence) andany such action taken or statement made that involves or relates to an Acquisition Proposal shall be deemed to be an Adverse Recommendation Change unless the Board of Directors of the Company reaffirms the Company Board Recommendation in such statement or in connection with such action; or (y) making any required disclosure to the stockholders of the Company if 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 cause the Company Board be reasonably likely to breach its fiduciary duties under applicable be inconsistent with Applicable Law, and (ii) such Person executes a confidentiality agreement in a form no less favorable provided that any Adverse Recommendation Change involving or relating 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 may only be made in accordance with the provisions of Section 6.03(b), Section 6.03(c) and Section 6.03(e). For the avoidance of doubt, a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act shall not be an Adverse Recommendation Change.
(c) In addition to the requirements set forth in Section 6.03(b), the Board of Directors of the Company shall not take any of the actions referred to in clauses (i) through (iii) of Section 6.03(b) unless the Company shall have first delivered to Parent written notice advising Parent that it intends to take such Personaction, and the Company shall continue to advise Parent, on a current basis, after taking such action of the status and material terms of any discussions and negotiations with the applicable Third Party. In addition, 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 event later than 24 hours) after receipt by the Company (or any of its receipt thereof, and shall provide Parent with a copy Representatives) of any written Acquisition Proposal, any indication that a Third Party is considering making an Acquisition Proposal or amendments any request for information relating to the Company or supplements theretoany of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that may be considering making, or has made, an Acquisition Proposal, which notice shall be provided orally and in writing and shall identify the Third Party making, 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 of, any such Acquisition Proposal, and shall promptly give Parent a copy of indication or request (including any information delivered to such Person which has not previously been provided or made available to Parentmaterial changes thereto). The Company shall not waive keep Parent fully informed, on a current basis, of the status and details of any standstill such Acquisition Proposal, indication or confidentiality provisions contained request (including any changes thereto) and shall promptly (but in agreements no event later than 24 hours after receipt) provide to which Parent copies of all material correspondence and written materials sent or provided to the Company is a party or any of its Subsidiaries that describes any terms or conditions of any Acquisition Proposal (as well as written summaries of any material oral communications addressing such matters).
(d) Notwithstanding anything in this Agreement to which the contrary, at any time prior to the approval and adoption of this Agreement by the Company’s stockholders (and in no event after the approval and adoption of this Agreement by the Company’s stockholders), the Board of Directors of the Company is subject unless may effect an Adverse Recommendation Change involving or relating to an Intervening Event if the Board of Directors of 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 be reasonably likely to breach be inconsistent with its fiduciary duties under applicable Applicable Law.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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 ; provided 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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 shall (A) promptly notify Parent in writing of its intention to take such action and (B) negotiate in good faith with Parent for two Business Days following such notice regarding revisions to the terms of this Agreement proposed by Parent and (y) the Board of Directors of the Company shall not effect any Adverse Recommendation Change involving or relating to an Intervening Event unless, after the two Business Day period described in the foregoing clause (B), the Board of Directors of the Company determines in good faith, upon the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 be reasonably likely to breach be inconsistent with its fiduciary duties under applicable Law and (z) after five Business Days have elapsed following to the Company's delivery to Parent stockholders of written notice advising Parent that the Company under Applicable Law.
(e) Without limiting or affecting Section 6.03(a), Section 6.03(b) or Section 6.03(c), the 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 Directors of the Company shall not make an Adverse Recommendation Change involving or relating to a Superior Proposal or terminate this Agreement in order to enter into an a definitive agreement with respect to a Superior Proposal unless (i) the Company promptly notifies Parent, in writing at least five calendar days before taking such action, that it intends to take such action, which notice attaches the most current version of any proposed agreement or a detailed summary of all material terms of such Superior Proposal and the identity of the offeror, (ii) if requested by Parent, during such five calendar day period, the Company and its Representatives have discussed and negotiated in good faith with Parent regarding any proposal by Parent to amend the terms of this Agreement in response to such Superior Proposal and (iii) after such five calendar day period, the Board of Directors of the Company determines in good faith, taking into account any proposal by Parent to amend the terms of this Agreement, that such Acquisition Proposal continues to constitute a Superior Proposal (it being understood and agreed that in the event of any amendment to the financial terms or other material terms of any such Superior Proposal, a new written notification from the Company consistent with that described in clause (i) of this Section 6.03(e) shall be required and a new notice period under clause (i) of this Section 6.03(e) shall commence, during which notice period the Company shall terminate be required to comply with the requirements of this Agreement in accordance Section 6.03(e) anew, except that such new notice period shall be for three Business Days (as opposed to five calendar days)). After delivery of such written notice pursuant to the immediately preceding sentence, the Company shall promptly keep Parent informed of all material developments affecting the material terms of any such Superior Proposal (and the Company shall provide Parent with Section 8.01(c)(iicopies of any additional written materials received that relate to such Superior Proposal).
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit Parent agrees that neither it nor any of its Subsidiaries tonor any of the officers and directors of it or its Subsidiaries shall, and that it shall cause its officers, directors and its Subsidiaries’ employees, agents and representatives (including any investment bankersbanker, consultantsattorney, financial advisors, accountants, agents accountant or other representatives advisor retained by it or any of its Subsidiaries for services provided in connection with the transactions contemplated by this Agreement whether as of the Original Merger Agreement Date or any time thereafter) (collectively, “Representatives”) not to, solicitdirectly or indirectly, initiate initiate, solicit or knowingly encourage the submission of or facilitate any Acquisition Proposal Proposal. Parent further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, (as hereinafter definedi) or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions or negotiations or furnish to with, any Person any information with respect relating to an Acquisition Proposal Proposal, or otherwise knowingly encourage or facilitate any effort or attempt to make or implement an Acquisition Proposal. Any violation of the foregoing restrictions by , (ii) amend or grant any of the Company's representatives, whether waiver or not such representative is so authorized and whether release under any standstill or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 similar agreement with respect to any Acquisition Proposal andclass of equity securities of Parent or any of its Subsidiaries (unless the Company’s obligations under the standstill provisions contained in the Confidentiality Agreement dated May 27, to the extent within its power, to recover or cause to be destroyed all information concerning 2005 between the Company and its Subsidiaries Parent (the “Confidentiality Agreement”) are simultaneously waived), (iii) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of the Delaware Law, (iv) amend or grant any waiver or release or approve any transaction or redeem any Parent Rights under the Parent Rights Agreement, (v) make any Adverse Parent Recommendation Change in the possession of such Persons and their affiliatesconnection with an Acquisition Proposal or (vi) enter into any definitive agreement with respect to an Acquisition Proposal; provided, representatives and advisors. Nothing however, that nothing contained in this Agreement shall prevent the Company Parent or its Board of Directors from (1) complying with Rule its disclosure obligations under Sections 14d-9 or Rule 14e-2 under and 14e-2(a) of the Exchange 1934 Act with respect regard to any an Acquisition Proposal or making any Proposal; provided, however, that if such 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)constitutes an Adverse Parent Recommendation Change, the Company may negotiate or otherwise engage shall have the right to terminate this Agreement as set forth in substantive discussions with, Section 10.01(c)(i) of this Agreement; and furnish nonpublic information (2) at any time prior to, any Person but not after, the Parent Stockholder Approval is obtained, (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal by if the Board of Directors of Parent receives from the Person so requesting such Person information, prior to acquire in the provision of 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 faithsuch information, 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 an executed confidentiality agreement in a form on terms no less favorable to Parent than those contained in the Confidentiality Agreement (provided that, such executed confidentiality agreement may contain less favorable standstill provisions as long as the Company’s obligations under the standstill provisions contained in the Confidentiality Agreement are simultaneously waived); (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors of Parent receives from such Person, prior thereto, an executed confidentiality agreement as described in the immediately preceding clause (A); or (C) recommending or making any Adverse Parent Recommendation Change in connection with such an unsolicited bona fide written Acquisition Proposal to the stockholders of Parent, if and only to the extent that, (x) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of Parent determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties, (y) in each case referred to in clause (B) or (C) above, the Board of Directors of Parent determines in good faith (after consultation with its financial advisor and its outside legal counsel) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal, the likelihood of obtaining financing, and the Person making the proposal, and if consummated, would result in a transaction more favorable to Parent’s stockholders from a financial point of view than the transactions contemplated by this Agreement taking into account any change proposed by the Company; and (z) in the case of clause (C), the Company than shall have had written notice of Parent’s intention to take the Confidentiality Agreementaction referred to in clause (C) at least 20 Business Days prior to the taking of such action by Parent (which notice shall have attached the most current version of the agreement relating to the Acquisition Proposal in question and a summary of any other material terms relating thereto) and Parent shall, and shall cause its Representatives to, during such 20 Business Day period, negotiate in good faith with the Company with respect to any changes the Company may wish to make with respect to its proposal; provided, that any more favorable Acquisition Proposal referred to in clause (B) or (C) above must constitute an Acquisition Proposal that involves the acquisition, directly or indirectly, of 50% or more of the voting power of the Parent Stock or the assets of Parent and its Subsidiaries taken as a whole (any such more favorable Acquisition Proposal is referred to in this Agreement as a “Superior Proposal”). Prior Parent grees that it will immediately cease and cause to providing be terminated any information to or entering into existing activities, discussions or negotiations with any Person in connection conducted prior to the Original Merger Agreement Date with an Acquisition Proposal by such Person, the Company shall notify Parent of respect to any Acquisition Proposal (includingProposal, 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 including any discussions or negotiations with such a third party, and any material changes respect 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 possible sale of the Special Committee after consultation by Flextech Group. Parent agrees that it will take the Special Committee with and advice from its outside legal counsel, that necessary steps to promptly inform the failure individuals or entities referred to take such action would cause in the Company Board to breach its fiduciary duties under applicable Law.
(c) Except as permitted by the second first sentence of this Section 6.05(c), neither 6.08 of the obligations undertaken in this Section 6.08. Parent agrees that it will notify the Company Board nor promptly, but in any committee thereof shall (i) withdraw event within 48 hours if any proposals or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, its recommendation to its stockholders offers referred to in this Section 1.02 hereof6.08 are received by, any such information is requested from, or take any action not explicitly permitted by this Agreement that would such discussions or negotiations are sought to be inconsistent initiated or continued with, it or any of its Representatives indicating, in connection 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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offersuch notice, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance name of the Offer and/or approval such Person 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 any proposals or offers and identifying the Person making the Superior Proposal; provided, however, that thereafter shall keep the Company shall not enter into an agreement informed on a current basis, and, in any event, within 24 hours of any changes in the status, the terms and any other material details of any such proposals or offers, including whether any such proposal has been withdrawn or rejected. Parent also agrees to provide any information to the Company that it is providing to another Person pursuant to this Section 6.08 at substantially the same time it provides it to such other Person. Parent agrees promptly, but in any event within five days after the Original Merger Agreement Date, to request the return or destruction of all information and materials provided prior to the Original Merger Agreement Date by it, its Affiliates or their respective Representatives (and any information derived therefrom) with respect to a Superior the consideration or making of any Acquisition Proposal unless (including with respect to the Company possible sale of the Flextech Group) and Parent shall terminate otherwise use its reasonable best efforts to enforce any confidentiality agreement relating thereto. The parties agree that in determining what actions are necessary for the Board of Directors of Parent to comply with their respective fiduciary duties, the Board of Directors may consider the transactions contemplated by this Agreement in accordance with Section 8.01(c)(iito be structured as they were under the Original Merger Agreement (except to the extent that the structure under this Agreement eliminates the need for consents of Third Parties).
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The From the date hereof until the termination hereof, the Company shall will not, and shall not permit any of will cause its Subsidiaries to, and shall cause its the officers, directors and directors, employees, and any investment bankers, consultants, financial advisorsattorneys, accountants, consultants or other agents or other representatives retained by it or any advisors of the Company and its Subsidiaries not to, directly or indirectly, (i) take any action to solicit, initiate initiate, facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) or engage in discussions or negotiations with, or furnish 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, any Person any information with respect who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal or knowingly facilitate any effort inquiries or attempt the making of any proposal that constitutes, or may reasonably be expected to make lead to, any Acquisition Proposal, or (iii) 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 is considering making an Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any Person who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal. Any violation 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, indication or request. The Company shall keep Parent fully informed, on a current basis, of the foregoing restrictions by status and details of any of such Acquisition Proposal, indication or request (including, without limitation, any material changes to the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyterms thereof). The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisorsProposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange 1934 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 LawProposal.
(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)foregoing, 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 who delivers a Superior 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 faithhas complied with the terms of this Section 7.04, 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 itrequirement in Section 7.04(a) as that it notify Parent 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 (ii) the Board 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 Directors of the Company is a party or to which the Company is subject unless the Company Board determines in good faithfaith by a majority vote, upon on the recommendation basis 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 consistent with its fiduciary duties under applicable Lawlaw, it must take such action, (iii) such Person 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 action and (v) the Offer shall not have closed.
(c) Except as permitted by the second sentence The Board of this Section 6.05(c), neither Directors of the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 approval and recommendation to its stockholders shareholders referred to in Sections 2.02 and 7.02 hereof, but only if (i) the Company has complied with the terms of this Section 1.02 hereof7.04, including, without limitation, the requirement in Section 7.04(a) that it notify Parent promptly after its receipt of any Acquisition Proposal, (ii) a Superior Proposal is pending at the time the Company's Board of Directors determines to take any such action, (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 Company's Board of Directors determines in good faithfaith by a majority vote, upon on the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) the Company Board determines in good faith, upon the recommendation basis of the Special Committee after consultation by the Special Committee with and advice from of its outside legal counsel, that the failure to take such action would cause the Company Board to breach consistent with its fiduciary duties under applicable Law law, it must take such action and (ziv) after five Business Days the Company shall have elapsed following the Company's delivery delivered to Parent of four business days' prior written notice advising Parent that the Company Board has received a Superior Proposal specifying the material terms and conditions of it intends to take 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) action. For purposes of this Agreement:, "Superior Proposal" means any bona fide, unsolicited written Acquisition Proposal for 50% or more of the outstanding Shares on terms that the Board of Directors of the Company determines in good faith by a majority vote is more favorable and provides greater value to the Company's shareholders than as provided hereunder, and such decision is made on the basis of the 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. 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. (a) The Unless and until this Agreement will have been terminated pursuant to Article 11, neither the Company nor the Company Subsidiary shall, nor shall notthe Company or the Company Subsidiary authorize, and the Company and the Company Subsidiary shall not permit use all reasonable efforts to prevent, any of its Subsidiaries to, and shall cause its or their officers, directors and directors, employees, and any investment bankers, consultants, financial advisorsattorneys, accountants, consultants or other agents or other representatives retained by it or any of its Subsidiaries not advisors to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) enter into or engage participate in any discussions or negotiations with, furnish any non-public information relating to the Company or furnish the Company Subsidiary (other than as to the existence of these provisions) or afford access to the business, properties, assets, books or records of the Company or the Company Subsidiary to, otherwise knowingly cooperate in any Person way with, or knowingly assist, participate in, facilitate or encourage any information effort by any Third Party to make an Acquisition Proposal, or (iii) enter into any agreement with respect to an Acquisition Proposal. The Company shall not submit to the vote of its stockholders any Acquisition Proposal other than this Agreement, or knowingly facilitate any effort or attempt propose to make do so until after the termination of this Agreement. If the Company receives an unsolicited submission of an Acquisition Proposal. Any Proposal and the Company is not in violation of this Section 6.03 with respect to the foregoing restrictions by any submission of the Company's representativessuch Acquisition Proposal, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach may inform the Stockholders of this Agreement by the Company. such Acquisition Proposal.
(b) The Company shall, and shall cause its Subsidiaries the Company Subsidiary and the officers, directorsadvisors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives of the Company and its Subsidiaries the Company Subsidiary to, cease immediately and cause to be terminated any and all existing activities, discussions and or negotiations, if any, with any Persons Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and, and shall use all commercially reasonable efforts to the extent within cause any such Party (or its power, to recover agents or cause to be destroyed all advisors) in possession of confidential information concerning about 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 that was furnished by 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 on behalf of the Company Board, upon recommendation of the Special Committee after consultation with and advice from its outside legal counsel, is required by applicable Lawto return or destroy all such information.
(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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
No Solicitation; Other Offers. (a) The Company Until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Seller shall not, and shall not permit any cause each of its 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 Representatives not to, directly or indirectly, (a) solicit, initiate or knowingly encourage, or take any action to solicit, initiate or knowingly encourage any inquiries, announcements or communications relating to, or the submission making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (b) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Purchaser, (as hereinafter definedc) or engage in discussions or negotiations or furnish to any Person other than Purchaser any information with respect that Seller believes or should reasonably know would 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 or knowingly facilitate (d) accept any effort Acquisition Proposal or attempt enter into any agreement, arrangement or understanding providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to make an any Acquisition Proposal. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company Seller shall, and shall cause each of its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries Representatives to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement with respect to any Acquisition Proposal and, to Proposal. Until 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 earlier of the majority Closing or the termination 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 its terms, Seller shall, and shall cause each of its Representatives to, promptly (and in connection therewith enter into an agreement with respect to such Superior Proposalany event, but only if in each case (x) the Company has received no later than one Business Day following receipt of an Acquisition Proposal) notify Purchaser of any Acquisition Proposal received by Seller or its Subsidiaries and Representatives after the Execution Date, which the Company Board determines in good faith, upon the recommendation notice shall include a summary of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 any such Superior Proposal and identifying the Person making the Superior Acquisition 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 whether conveyed verbally or in accordance with Section 8.01(c)(ii)writing.
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The Company shall notDuring the Voting Period, Stockholder (solely in his, her or its capacity as a stockholder and in no other capacity) shall, and shall not permit any of its Subsidiaries to, and Stockholder 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 Representatives not to, solicit, initiate or encourage take any action that the submission of any Acquisition Proposal (as hereinafter definedCompany and its Representatives would then be prohibited from taking under Section 5.03(a) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company Merger Agreement.
(b) Stockholder shall, and shall cause his, her or its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries Representatives to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted negotiations that commenced prior to 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 Company Board from complying with Rule 14d-9 regarding any proposal that constitutes, 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 could reasonably be expected to result in a Superior Proposal (as hereinafter defined) andlead to, 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.
(c) Except as permitted by In the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall event that (i) withdraw or modify, or publicly propose to withdraw or modify, the Merger Agreement is terminated in any circumstances in which 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 Company Termination Fee is payable thereunder and the Merger, (ii) approve within twelve (12) months of the termination of the Merger Agreement, either an Acquisition Transaction is consummated or recommendthe Company enters into a definitive agreement providing for the consummation of an Acquisition Transaction (regardless of whether such consummation occurs within such twelve (12) month period), then within two (2) Business Days of the consummation of such Acquisition Transaction, Stockholder shall pay, or publicly propose cause to approve or recommendbe paid, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement Parent an amount in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior cash equal to the time Shared Surplus Proceeds Amount by wire transfer of acceptance of the Shares for payment pursuant immediately available funds to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii) to withdraw, an account or modify accounts designated in a manner adverse to writing by 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 that, in the Company shall event the consideration in such Acquisition Transaction does not enter into contain cash in an agreement amount sufficient to satisfy the payment obligation in this paragraph, Stockholder may, at its election, in lieu of cash, deliver non-cash consideration received in such Acquisition Transaction and valued consistent with respect the definition of “Shared Surplus Proceeds Amount” to a Superior Proposal unless the Company shall terminate this Agreement in accordance with Section 8.01(c)(ii)Parent to satisfy its obligations hereunder.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Support Agreement (Intuit Inc)
No Solicitation; Other Offers. (a) The During the Interim Period, the Company shall not, and shall not permit any cause each of its Subsidiaries to, Representatives and shall cause its officers, directors each of the other Acquired Companies (and employees, and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it or any each of its Subsidiaries their respective Representatives) not to, directly or indirectly, (i) solicit, initiate 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 submission 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 Parent, (as hereinafter definediii) or engage in discussions or negotiations or furnish to any Person other than Parent any information that the Company believes or should reasonably know would 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, (v) submit any Acquisition Proposal or any matter related thereto to the vote of the stockholders of the Company, (vi) amend or grant any waiver or release under any standstill or similar agreement with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation class of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf equity securities of the Company or otherwiseany of the other Acquired Companies or (vii) resolve, shall be deemed a breach propose or agree to do any of the foregoing. From and following the date of this Agreement by Agreement, the Company. Company further agrees not to, and to cause each other Acquired Company 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 Parent.
(b) The Company shall, and shall cause each of its Subsidiaries Representatives and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives each of the Company other Acquired Companies (and its Subsidiaries each of their respective Representatives) to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement with respect to any Acquisition Proposal and, to Proposal. During 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 thatInterim Period, in the good faith judgment event any Acquired Company or any Representative of the majority of the members of the any Acquired 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 receives an Acquisition Proposal by such PersonProposal, the Company shall promptly (and in any event within 24 hours from the receipt thereof) notify Parent of any such event; provided, however, that such notice may be limited to notice of the receipt of an Acquisition Proposal (including, without limitation, and in no event shall the material terms and conditions thereof and Company be required to disclose the identity of the Person any 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior in no event shall the Company be obligated to disclose any material terms of an Acquisition Proposal to the time extent restricted from 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 acceptance its subsidiaries, or any of its or their respective Representatives seeking to acquire any equity interests of the Shares for payment pursuant Company where such proposed transaction would not reasonably be expected to constitute a sale, directly or indirectly of greater than fifteen percent (15%) of the Offerequity interests of the Company in connection with a bona fide equity financing of the Company. Promptly following the execution of this Agreement, the Company Board shall be permitted deliver written notices to request the return or destruction of all confidential information to all Persons (i) not to recommend to its except for Parent and current stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, Company) with such return or destroy obligations under non-disclosure or similar agreements (ii) except for such non-disclosure or similar agreements that do not relate 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 potential Acquisition Proposal, but only if in each case (x) financing of the Company has received an Acquisition Proposal which the Company Board determines in good faith, upon the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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)(iior similar transaction).
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Okta, Inc.)
No Solicitation; Other Offers. (a) The From the date hereof until the termination hereof, the Company shall will not, and shall will cause its Subsidiaries and will use reasonable best efforts to cause the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors of the Company and its Subsidiaries not permit to, directly or indirectly, (i) take any action to solicit or initiate the submission of any Acquisition Proposal or (ii) engage in discussions or negotiations with, or disclose any nonpublic information relating to the Company or any of its Subsidiaries to, and shall cause its officersany Person who, directors and employeesto the knowledge of the Company, is considering making, or has made, an Acquisition Proposal; provided that the Company may negotiate or otherwise engage in discussions with, and furnish nonpublic information to, any investment bankersPerson in response to an unsolicited Acquisition Proposal if (w) the Company has complied with the terms of Section 6.03(b), consultants(x) the Board of Directors of the Company determines in good faith that, financial advisorsbased on the terms and conditions contained in such Acquisition Proposal, accountantssuch Acquisition Proposal could reasonably be expected to constitute a Superior Proposal, agents (y) prior to providing any information or other representatives retained data to any Person in connection with an Acquisition Proposal, such Person executes a confidentiality agreement with terms substantially similar to those contained in the Confidentiality Agreement (except as to the standstill provisions, provided that if the Company so enters into any such confidentiality agreement without standstill provisions substantially similar to those in the Confidentiality Agreement, then Parent shall to the extent of such difference be relieved of compliance with the Confidentiality Agreement's standstill obligations) and (z) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action.
(b) The Company will notify Parent promptly after receipt by it the Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries not to, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) or engage in discussions or negotiations or furnish to by any Person any information with respect who, to an Acquisition Proposal the knowledge of the Company, is making, or knowingly facilitate any effort or attempt to make has made, an Acquisition Proposal. Any violation 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, indication or request. The Company shall keep Parent informed of the foregoing restrictions by status and details of any of the Company's representativessuch Acquisition Proposal, whether indication or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyrequest. The Company shall, and shall cause its Subsidiaries and use reasonable best efforts to cause the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 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 LawProposal.
(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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
No Solicitation; Other Offers. (a) The During the Interim Period, the Company shall not, and shall not permit any cause each of its Subsidiaries to, Representatives and shall cause its officers, directors each of the other Acquired Companies (and employees, and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it or any each of its Subsidiaries their respective Representatives) not to, directly or indirectly, (i) solicit, initiate initiate, facilitate, knowingly induce or encourage engage or take any action to solicit, initiate, facilitate, knowingly induce or engage in any inquiries, announcements or communications relating to, or the submission 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 Parent, (as hereinafter definediii) or engage in discussions or negotiations or furnish to any Person other than Parent any information that the Company believes or should reasonably know would 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, (v) submit any Acquisition Proposal or any matter related thereto to the vote of the stockholders of the Company, (vi) amend or grant any waiver or release under any standstill or similar agreement with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation class of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf equity securities of the Company or otherwiseany of the other Acquired Companies or (vii) resolve, shall be deemed a breach propose or agree to do any of the foregoing. From and following the date of this Agreement by Agreement, the Company. Company further agrees not to, and to cause each other Acquired Company 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 Parent.
(b) The Company shall, and shall cause each of its Subsidiaries Representatives and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives each of the Company other Acquired Companies (and its Subsidiaries each of their respective Representatives) to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement 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 provide Parent with a written description of any expression of interest, proposal or offer relating to a possible |US-DOCS\123754940.16|| Acquisition Proposal, that is received by any Acquired Company or any Representative of any Acquired Company from any Person (other than Parent), including in such description the identity of such Person (the “Other Interested Party”) and provide to Parent a copy of any information delivered to such Person which has not previously been provided proposal or made offer if available to Parent. The Company shall not waive any standstill or confidentiality provisions contained in agreements to which writing.. Promptly following 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.
(c) Except as permitted by the second sentence execution of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the OfferAgreement, the Company Board shall be permitted deliver written notices to request the return or destruction of all confidential information to all Persons (i) not to recommend to its except for Parent and current stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, Company) with such return or destroy obligations under non-disclosure or similar agreements (ii) except for such non-disclosure or similar agreements that do not relate 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 potential Acquisition Proposal, but only if in each case (x) financing of the Company has received an Acquisition Proposal which the Company Board determines in good faith, upon the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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)(iior similar transaction).
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Skillz Inc.)
No Solicitation; Other Offers. (a) The From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 8, the Company and its Subsidiaries shall not, and nor shall not they permit any of their Affiliates to, nor shall they authorize any of the officers, directors, employees, investment bankers, consultants and other agents and Affiliates of the Company and its Subsidiaries to, and shall cause its officersdirectly or indirectly, 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, (i) solicit, initiate initiate, encourage, induce or encourage knowingly facilitate (including by way of furnishing information) the submission of any Acquisition Proposal or any inquiries with respect thereto, (as hereinafter definedii) or engage in discussions or negotiations or furnish to with any Person any information with respect to concerning an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the foregoing restrictions by any Knowledge of the Company's representatives, whether is making or not such representative is so authorized and whether considering making, or not such representative is purporting 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 Company of any Acquisition Proposal or any request for nonpublic information relating to act on behalf of the Company or otherwiseany of its Subsidiaries by any Person who, shall be deemed a breach to the Knowledge of this Agreement by 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 (including amendments or proposed amendments) of any such Acquisition Proposal or request. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliatesAffiliates, 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 Section 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 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 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 the Company has complied with the terms of this Section 6.05, (ii) the Board of Directors 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, faith that such Acquisition Proposal would could reasonably be expected to result in a Superior Proposal (as hereinafter defined) and, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action would cause the Company Board could reasonably be deemed to constitute a breach of its fiduciary duties under applicable Lawlaw, and (iiiii) such Person executes a confidentiality agreement in a form with terms no less favorable to the Company than those contained in 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, Agreement (including the standstill provisions unless the Company shall notify have amended the Confidentiality Agreement to modify the standstill provisions therein to be no more restrictive of Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the than such 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 is restricted pursuant to such Person which has not previously been provided or made available to Parentconfidentiality 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 waive any standstill or confidentiality provisions previously provided to Parent. Nothing contained in agreements to which this Agreement shall prevent the Company is a party 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 which any Acquisition Proposal or making any disclosure to the Company is subject unless the Company Board determines in good faith, upon the recommendation of the Special Committee after consultation Company's stockholders required 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 Lawlaw or regulation.
(c) Except as permitted by the second sentence of in this Section 6.05(c), neither the Board of Directors of the Company Board nor any committee thereof shall (i) 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 this Agreement and the MergerMerger 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, commitment agreement or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time Cutoff Date, the Board of acceptance Directors of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii) or to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereof2.08 hereof (each, (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"Adverse Recommendation Change"), but only if in each case (xi) the Company has complied with the terms of this Section 6.05, (ii) the Company has received an unsolicited Acquisition Proposal which the Company Board of Directors determines in good faith, upon the recommendation of a nationally recognized financial advisor, faith constitutes a Superior Proposal, (yiii) the Board of Directors of the Company Board determines in good faith, upon the recommendation of the Special Committee after consultation by the Special Committee with and receipt of advice from its outside legal counsel, that the failure to take such action would cause the Company Board could reasonably be deemed to breach be inconsistent with its fiduciary duties under applicable Law and law, (ziv) after five Business Days the Company shall have elapsed following the Company's delivery delivered to Parent of 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 Board has received a Superior Proposal specifying shall have negotiated in good faith with Parent during such three-Business Day period to make such amendments to the material 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 Superior Proposal three-Business Day period, Parent fails to make a proposal to adjust the terms and identifying conditions of this Agreement that the Person making 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; 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 During the period from the date of this Agreement until the Effective Time or earlier termination of this Agreement:, the Company shall not terminate, amend, modify or waive any provision of any confidentiality or standstill agreement relating to an Acquisition Proposal to which it or any of its Subsidiaries is a party (other than any involving Parent or its Subsidiaries). During such period, the Company agrees to enforce, to the fullest extent permitted under applicable law, the provisions of any such agreement, including obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court of the United States or any state thereof having jurisdiction.
Appears in 1 contract
Samples: Merger Agreement (Pulitzer Inc)
No Solicitation; Other Offers. From the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, (a) The each Seller shall not, and shall cause each of its Representatives not to, and (b) the Company shall not, and shall not permit any cause each of its Subsidiaries 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 Proposal that may involve the Purchased Shares; (ii) enter into, participate in, maintain or continue any discussions or negotiations relating to any Acquisition Proposal that may involve the Purchased Shares with any Person other than the Purchaser; (iii) furnish to any Person other than the Purchaser any information that the Company or such Seller believes or should reasonably 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 Proposal 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 the shareholders of the Company. Each Seller shall, and shall cause each of its officers, directors and employeesRepresentatives to, and the Company shall, and shall cause each of its Representatives to, immediately cease and cause to be terminated any investment bankersand all existing activities, consultantsdiscussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal that may involve the Purchased Shares, financial advisorsand shall promptly (and in any event within 24 hours) provide the Purchaser with: (x) a written description of any expression of interest, accountantsinquiry, agents proposal or offer relating to a possible Acquisition Transaction that is received by the Company or such Seller or by any Representative of the Company or such Seller from any Person (other representatives retained by it 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 (y) 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 its Subsidiaries not to, solicit, initiate the Other Interested Party’s Representatives to the Company or encourage the submission of any Acquisition Proposal (as hereinafter defined) Seller 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. Any violation Representative of the foregoing restrictions by any of the Company's representatives, whether Company or not such representative is so authorized and whether Seller or not such representative is purporting to act transmitted on behalf of the Company or otherwiseSeller or any Representative of 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 a breach to own, for the purpose of this Agreement by the Company. The Company shallsuch obligations and rights, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives all 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 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 LawPurchased Shares.
(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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
No Solicitation; Other Offers. (a) The Except as required under applicable Law, the Company shall not, and shall not authorize or permit any of its Subsidiaries toSubsidiaries, and shall cause its officers, directors and directors, employees, and any investment bankers, consultants, financial advisorsattorneys, accountants, consultants or other agents or other representatives retained by it or any of its Subsidiaries not advisors to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) enter into or engage participate in any discussions or negotiations with, furnish any confidential information relating to the Company or furnish any of its Subsidiaries or afford access to the business, properties, assets, books 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 effort by, any third party that is seeking to make, or has made, an Acquisition Proposal, or (iii) grant any waiver or release under any standstill or similar agreement to which the Company or any of its Subsidiaries is a party.
(b) The Company shall, and shall cause 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 Person any information with respect to of such Persons that it is considering making an Acquisition Proposal or knowingly facilitate any effort request for confidential information relating to the Company or attempt to make an Acquisition Proposal. Any violation of the foregoing restrictions by any of its Subsidiaries or for access to the Company's representativesbusiness, whether properties, assets, books or not such representative is so authorized and whether or not such representative is purporting to act on behalf records of the Company or otherwiseany of its Subsidiaries by any third party that the Company reasonably believes may be considering making, shall be deemed a breach of this Agreement by the Companyor has made, an Acquisition Proposal. The Company shall, and shall cause its Subsidiaries all such other Persons to identify the third party making, and the officersterms and conditions of, directorsany such Acquisition Proposal, employees indication or any investment bankersrequest. The Company shall, attorneysand shall cause all such other Persons to, consultantskeep ABI fully informed, financial advisorson a current basis, agents or other representatives of the status and details of any such Acquisition Proposal, indication or request. The Company shall, and its Subsidiaries shall cause all such other Persons to, cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, with any Persons third party conducted prior to the date hereof with respect to any Acquisition Proposal and, and use its commercially reasonable best efforts to the extent within cause any such Party (or its power, to recover agents or cause to be destroyed all advisors) in possession of confidential information concerning about the Company and or any of 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 that was furnished by 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 on behalf 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 return 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 destroy all 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 Lawinformation.
(c) Except as permitted by For the second sentence avoidance of doubt, nothing in this Section 6.05(c), neither the Company Board nor any committee thereof Agreement shall restrict (i) withdraw any holder of Company Shares from considering, negotiating or modifyaccepting any Acquisition Proposal, and nothing herein shall be construed to require any holder of Company Shares to participate or publicly propose to withdraw or modify, sell Company Shares 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 or through the MergerTrust, (ii) approve ABI or recommend, or publicly propose to approve or recommend, its appointed directors of the Company from voting against any Acquisition Proposal or Proposal, and (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance performance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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)DIFA Merger Agreement.
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The Company shall notDuring the Interim Period, and shall not permit any of its 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, solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation none of the foregoing restrictions by any of Sellers or the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause each of its Subsidiaries Representatives and each of the other Acquired Companies (and each of their 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 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 Buyer, (iii) furnish to any Person other than Buyer any information that any of the Sellers or the Company believes or should reasonably know would 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 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. The Sellers and the officersCompany shall, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives and shall cause each of its Representatives and each of the Company other Acquired Companies (and its Subsidiaries each of their respective Representatives) to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement 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 (and in any event within 24 hours) provide Buyer with: (i) an oral and a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition 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 any of the Sellers or any Acquired Company or any Representatives of the Sellers or any Acquired Company from any Person (other than Buyer), including in such description the identity of the Person from which such expression of interest, inquiry, proposal, offer or request for information was received (the “Other Interested Party”) and (ii) 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 each written communication and a party or to which the Company is subject unless the Company Board determines in good faith, upon the recommendation complete summary of each other communication transmitted on behalf of the Special Committee after consultation by Other Interested Party or any of the Special Committee with and advice from its outside legal counsel, that Other Interested Party’s Representatives to any of the failure Sellers or any Acquired Company or any Representatives of the Sellers or any Acquired Company or transmitted on behalf of any of the Sellers or any Acquired Company or any Representatives of the Sellers or any Acquired Company to take such action would cause the Company Board to breach its fiduciary duties under applicable Law.
(c) Except as permitted by Other Interested Party or any of the second sentence Other Interested Party’s Representatives. Promptly following the execution of this Section 6.05(c)Agreement, neither the Company Board nor any committee thereof shall (i) 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 each of the Offer Sellers 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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 deliver written notices to request the return or destruction of all confidential information to all Persons (except for Buyer) with such return or destroy obligations under non-disclosure or similar agreements (except for such non-disclosure or similar agreements that do not enter into an agreement with respect relate to a Superior Proposal unless potential Acquisition Proposal, financing of the Company shall terminate this Agreement in accordance with Section 8.01(c)(iiAcquired Companies or similar transaction).
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The Company Prior to the earlier of the Closing and the valid termination of this Agreement, the Coyote Entities shall not, and shall not permit direct the officers, directors, managers, members, employees, stockholders, representatives, agents, investment bankers and any of its Subsidiaries their respective Affiliates not to, directly or indirectly, (i) pursue, solicit, initiate, knowingly facilitate or encourage or otherwise enter into any discussions, negotiations, agreements or other arrangements regarding or which would reasonably be expected to lead to, a sale or other disposition (whether by merger, reorganization, recapitalization or otherwise) of all or any part of the membership interests or any material portion of the assets of any Coyote Entity with any other Person other than Roadrunner or its Affiliates (an “Acquisition Proposal”), (ii) provide any confidential information to any Person other than Roadrunner or its Affiliates and shall cause its their Representatives, other than information which is provided in the regular course of the Coyote Entities’ business operations to third parties where the Coyote Entities and their 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, solicit, initiate or encourage the submission of Affiliates have no reason to believe that such information will be utilized to evaluate any Acquisition Proposal Proposal, or (as hereinafter definediii) or engage in discussions or negotiations or furnish to any Person any information enter into a Contract with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company Coyote shall, and shall cause its Subsidiaries and direct the officers, directors, employees or members, managers, employees, stockholders, representatives, agents, investment bankers and any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries their respective Affiliates to, (A) immediately cease immediately and cause to be terminated terminated, all activities, existing discussions and negotiations, if any, or negotiations with any Persons conducted prior heretofore with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (B) promptly notify Roadrunner if any Acquisition Proposal, or any inquiry or contact with any Person with respect thereto which is made after the date hereof of this Agreement, and a reasonable summary of the details of such contact (including the identity of the third party or third parties and copies of any proposals and a reasonable summary of the specific terms and conditions discussed or proposed); and (C) keep Roadrunner reasonably informed 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 status 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 Lawforegoing.
(b) Notwithstanding Roadrunner shall not, and shall cause the first sentence of Sections 6.05(a)Roadrunner Subsidiaries and direct its and their respective officers, prior to the time of acceptance of Shares pursuant to the Offer directors, managers, members, employees, representatives, agents and subject to the provisions of this Section 6.05(b) and Section 6.05(c)investment bankers not to, the Company may negotiate directly or indirectly, pursue, solicit, initiate, knowingly facilitate or encourage, or otherwise engage in substantive discussions withenter into any discussions, and furnish nonpublic information tonegotiations, 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 agreements 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 other arrangements regarding or another nationally recognized financial advisor, that such Acquisition Proposal which would reasonably be expected to lead to, an acquisition, sale, disposition or other transaction, with any Person other than the Sellers or their Affiliates that would result in a Superior Proposal Roadrunner Acquisition Transaction or would reasonably be expected to have a material adverse effect on the ability of Roadrunner, New Pubco or Merger Sub to consummate the transactions contemplated by this Agreement or the other Transaction Agreements (as hereinafter defineda “Conflicting Transaction”) and, after consultation or enter into a Contract 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 Lawany other Person in respect of a Conflicting Transaction, and (ii) such Person executes a confidentiality agreement in a form no less favorable shall, and shall cause its Subsidiaries and direct its and their respective officers, directors, managers, members, employees, representatives, agents and investment bankers to, immediately cease and cause to the Company than the Confidentiality Agreement. Prior to providing any information to or entering into be terminated, all existing discussions or negotiations with any Person in connection Persons conducted heretofore 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) withdraw or modifyrespect to, 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 reasonably be inconsistent with its approval of the Offer and the Mergerexpected to lead to, (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, commitment or similar agreement related to any Acquisition Proposala Conflicting Transaction. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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:the preceding sentence, a Conflicting Transaction includes any request, solicitation or proposal to abandon, terminate or fail to consummate any of the transactions contemplated hereby or by the other Transaction Agreements.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (R1 RCM Inc.)
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit any of its Subsidiaries to, and shall cause use its best efforts to ensure that its officers, directors and or employees, and or any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it or any of its Subsidiaries not todo not, solicit, initiate or initiate, encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 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 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 thatif, in the good faith judgment of the majority of the members of the Company Board, upon recommendation Board of Directors of the Special Committee Company, after consultation with and advice from its outside legal counsel, is required by failure to so disclose would reasonably be deemed to constitute a breach of the fiduciary duties of the Board of Directors under applicable Law.
(b) . Notwithstanding the first sentence of Sections Section 6.05(a), prior to until the time receipt of acceptance of Shares pursuant to the Offer and subject to the provisions of this Section 6.05(b) and Section 6.05(cRequired 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 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 Board of Directors of the Company Board determines in good faith, upon the recommendation of the Special Committee after the Special Committee has received receiving the advice of Xxxxxxxx Xxxxx or another a 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 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 AgreementAgreement (including the standstill provisions). Prior to providing any information to or entering into discussions or negotiations with any Person person in connection with an Acquisition Proposal by such Personperson, the Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the Person 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 person which has not previously been provided or made available to reviewed by 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.
(c) Except as permitted by the second sentence of this Section 6.05(c6.05(d), neither the Board of Directors of the Company Board nor any committee thereof shall (i) 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 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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance until receipt of the Shares for payment pursuant to the OfferRequired Vote, the Board of Directors of the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 (xy) the Company has received an Acquisition Proposal which the Company Board of Directors determines in good faith, upon after receiving the recommendation advice of a nationally recognized financial advisor, constitutes a Superior Proposal, Proposal and (yz) the Board of Directors of 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 could reasonably be deemed to constitute a breach of its fiduciary duties under applicable Law and (z) after five Business Days have elapsed following Law. For purposes of this Section 6.05, the Company's delivery to Parent of written notice advising Parent parties agree that the Company scope of the fiduciary duty of the 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 Directors of the Company shall not enter into an agreement with respect be deemed to a Superior Proposal unless be limited or constrained by virtue of the fact that certain stockholders of the Company have agreed in the Voting and Tender Agreement to tender their shares to the Purchaser and to vote in favor of the 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 terminate this be entitled to assume that the Voting and Tender Agreement in accordance with Section 8.01(c)(ii).
(d) has been terminated. For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The From the date of the execution of this Merger Agreement through the Effective Time, or until such time, if any, as this Merger Agreement is terminated pursuant to Article IX, the Company shall not, and shall not permit any of its Subsidiaries to, and shall cause its officers, directors and directors, employees, and any attorneys, investment bankers, consultantsagents, financial advisorsrepresentatives or Affiliates (collectively, accountants, agents or other representatives retained by it or any of its Subsidiaries not "COMPANY REPRESENTATIVES") to, (i) solicit, initiate or encourage any inquiry or proposal or the submission making of any inquiry or proposal from any Person (other than Parent), or enter into any agreement with any Person (other than Parent), with respect to any Acquisition Proposal, (b) furnish to any Person (other than Parent) any information with respect to, or otherwise cooperate in any way with, any Acquisition Proposal (as hereinafter definedother than an Acquisition Proposal with Parent) or engage (c) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish take any other action to facilitate any Person inquiries or the making of any 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 any inquiry, proposal or request for information with respect to an Acquisition Proposal Proposal, or knowingly facilitate any effort request for nonpublic information relating to the Company by any Person who, to the knowledge of the Company, is making or attempt to make considering making or who has made an Acquisition Proposal. Any violation of , that comes to the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf attention of the Company or otherwisethe terms thereof, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 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 such inquiry 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 Lawproposal.
(b) From the date of the execution of this Merger Agreement through the Effective Time, or until such time, 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) Except as permitted by the second sentence of this Section 6.05(cor (e), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 ParentParent their approval or recommendation of this Merger Agreement, its recommendation to its stockholders referred to in Section 1.02 hereofthe Merger or the Related Documents, or take any action having such effect, or (iiiii) to approve or recommend any Superior Acquisition 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 other than an Acquisition Proposal which the Company Board determines in good faith, upon the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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)(iiParent).
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (On Assignment Inc)
No Solicitation; Other Offers. (a) The From the date hereof until the termination hereof, the Company shall will not, and shall not permit any of will cause its Subsidiaries to, and shall cause its the officers, directors and directors, employees, and any investment bankers, consultants, financial advisorsattorneys, accountants, consultants or other agents or other representatives retained by it or any advisors of the Company and its Subsidiaries not to, directly or indirectly, (i) take any action to solicit, initiate initiate, facilitate or encourage the submission of any Acquisition Proposal Proposal, (ii) except as hereinafter defined) or permitted in Section 7.4(b), engage in discussions or negotiations with, or furnish 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, any Person any information with respect who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal or knowingly facilitate any effort inquiries or attempt the making of any proposal that constitutes, or may reasonably be expected to make lead to, any Acquisition Proposal, or (iii) 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 is considering making an Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any Person who the Company has reason to believe may be considering making, or has made, an Acquisition Proposal. Any violation 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, indication or request. The Company shall keep Parent fully informed, on a current basis, of any material changes to the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyterms thereof. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit any of its Subsidiaries to, cause the Bank 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 their respective Representatives not to, directly or indirectly, (i) solicit, initiate initiate, propose or knowingly encourage (including by way of furnishing non-public information) any inquiries or the submission of any Acquisition Proposal (as hereinafter defined) proposal that constitutes, or engage in discussions or negotiations or furnish could reasonably be expected to any Person any information with respect to lead to, an Acquisition Proposal or otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation ; (ii) enter into, continue or otherwise participate in any discussions (other than as necessary to ascertain facts or clarify terms with respect to an Acquisition Proposal that did not result from a breach of this Section 7.05) or negotiations regarding, furnish to any Person any non-public information relating to, afford access to the foregoing restrictions by any of the Company's representativesbusiness, whether or not such representative is so authorized Books and whether or not such representative is purporting to act on behalf Records and Assets of the Company or otherwisethe Bank in connection with, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or otherwise cooperate with any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries Person with respect 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 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 inquiry, proposal or offer that could reasonably be expected to the Company's stockholders thatlead to an Acquisition Proposal; or (iii) resolve, in the good faith judgment propose or agree to do any 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 foregoing; provided that if in response to an unsolicited unsolicited, bona fide written Acquisition Proposal by such Person made after the date hereof and at any time prior to acquire the time that the Requisite Stockholder Approval is obtained (but not thereafter) in any manner at least fifty percent circumstances not involving a breach of the Shares outstanding or fifty percent of the consolidated assets of this Section 7.05, the Company if Board determines in good faith (iafter consultation with outside legal counsel and its financial advisor) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a majority of Superior Proposal and with respect to which 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 reasonably be expected to constitute a breach of its fiduciary duties under applicable Law, then the Company may at any time prior to the time that the Requisite Stockholder Approval is obtained (but in no event after such time), furnish information with respect to the Company and the Bank to, or enter into discussions with, the Person making such Acquisition Proposal and its Representatives; provided that (ii1) at least 24 hours prior to furnishing any such information to, or entering into discussions with, such Person, Purchaser receives written notice from the Company of the identity of such Person executes and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company enters into with such Person a confidentiality agreement in a form that is no less favorable in all material respects to the Company than the Confidentiality AgreementAgreement and (2) the Company concurrently furnishes all such information provided to such Person to Purchaser (to the extent such information has not been previously furnished or made available by the Company to Purchaser and Purchaser’s Representatives). Prior to providing any information to or entering into discussions or negotiations with any Person in connection with an Acquisition Proposal by such PersonNotwithstanding the foregoing, the Company shall notify Parent not provide any commercially sensitive non-public information to any competitor, except in a manner consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Acquisition Proposals prior to the date hereof. The Company shall ensure that its Representatives are aware of the provisions of this Section 7.05(a). The Company shall provide Purchaser with an accurate and complete copy of any confidentiality agreement entered into pursuant to this Section 7.05(a) within 24 hours of the execution thereof.
(b) In addition to the other obligations of the Company set forth in this Section 7.05, the Company shall as promptly as practicable, and in any event no later than 24 hours after receipt thereof, advise Purchaser, orally and in writing, of any Acquisition Proposal (includingProposal, without limitationor any inquiry, proposal or offer that expressly contemplates or could reasonably be expected to lead to an Acquisition Proposal, and shall, in any such notice to Purchaser, indicate the identity of the Person making such Acquisition Proposal, inquiry, proposal or offer, the material terms and conditions thereof of any Acquisition Proposal, proposal or offer (including any subsequent amendment or other modification to such terms and conditions) or the identity nature of any inquiries or other contacts, and provide to Purchaser copies of any written materials received from or on behalf of such Person relating to such inquiry, proposal or offer (including any subsequent amendment or other modification to such terms and conditions), and thereafter the Person making it) as Company shall promptly as practicable (but and in no case later than any event within 24 hours) after its receipt thereof, and shall provide Parent with a copy advise Purchaser of any written Acquisition Proposal or amendments or supplements theretorelated material developments, discussions and shall thereafter inform Parent negotiations on a prompt basis of the status of reasonably current basis, including any discussions subsequent amendment or negotiations with other modification to such a third party, and any material changes to the terms and conditions of such Acquisition Proposal, . The terms and conditions of the Confidentiality Agreement shall promptly give Parent a copy of apply to any information delivered provided pursuant 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 Lawthis Section 7.05(b).
(c) Except as expressly permitted by the second sentence of this Section 6.05(c7.05(d), Section 7.05(e) or Section 7.05(f), neither the Company Board nor any committee thereof shall (i) withdraw (1) withhold, fail to make or modifyinclude in (or remove from) the Company Proxy Statement, withdraw, qualify or modify (or publicly propose or resolve to withdraw withhold, fail to make or modifyinclude in (or remove from) the Company Proxy Statement), in each case in a manner adverse to ParentPurchaser, its recommendation the Company Board Recommendation or (2) adopt, approve, recommend, submit to its the Company’s stockholders or declare advisable (or resolve, determine or propose to adopt, approve, recommend, submit to the Company’s stockholders or declare advisable) any Acquisition Proposal (any action described in this clause (i) being 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 Mergeras a “Company Adverse Recommendation Change”), (ii) approve or recommendany transaction under, or publicly propose to approve or recommendany Person becoming an “interested stockholder” under, any Acquisition Proposal Section 203 of the DGCL or (iii) cause adopt, approve, recommend, submit to Company’s stockholders or declare advisable (or resolve, determine or propose to adopt, approve, recommend, submit to the Company’s stockholders or declare advisable), or allow the Company or the Bank to execute or enter into into, any Contract, term sheet, letter of intent, agreement in principleprinciple or other similar instrument constituting or related to, acquisition agreementor that is intended to or could be reasonably likely to lead to, commitment or similar agreement related to any Acquisition Proposal. , or requiring or reasonably likely to cause the Company to abandon, terminate, delay or fail to consummate, or that would otherwise prevent, materially delay or materially impair the transactions contemplated hereby, other than a confidentiality agreement referred to in Section 7.05(a) entered into in compliance with Section 7.05(a).
(d) Notwithstanding the foregoingforegoing provisions of this Section 7.05, at any time prior to the time of acceptance of that the Shares for payment pursuant to the OfferRequisite Stockholder Approval is obtained (but not thereafter), the Company Board shall be permitted may effect a Company Adverse Recommendation Change or terminate this Agreement to enter into a Specified Agreement, in each case if, and only if, (i) the Company is not to recommend to its stockholders acceptance of the Offer and/or approval and adoption in material breach of this Agreement and the MergerSection 7.05, (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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) the Company Board determines in good faith, upon the recommendation of the Special Committee after consultation by with the Special Committee with and advice from its Company’s outside legal counsel, that the failure to take such action would cause make the Company Board Adverse Recommendation Change or terminate this Agreement to enter into a Specified Agreement would reasonably be expected to constitute a breach of its fiduciary duties under applicable Law and Law, (ziii) after the Company has given Purchaser written notice of the Company Board’s intention to make a Company Adverse Recommendation Change or terminate this Agreement to enter into a Specified Agreement, including all information required to be provided to Purchaser under Section 7.05(b), at least five Business Days have elapsed following prior to making any such Company Adverse Recommendation Change or terminating this Agreement to enter into a Specified Agreement (a “Change of Recommendation Notice”), (iv) if not based on an Intervening Event pursuant to Section 7.05(e) the decision to make a Company Adverse Recommendation Change shall be in connection with an Acquisition Proposal or with the Company's delivery ’s intent to Parent terminate this Agreement to enter into a Specified Agreement in accordance with the terms of written notice advising Parent that this Agreement, and the Company shall have complied with clauses (1) through (4) as follows: (1) prior to giving effect to clauses (2) through (4), the Company Board has received shall have determined in good faith, after consultation with its outside legal counsel and its financial advisor, that such Acquisition Proposal is a Superior Proposal specifying Proposal, (2) the Company shall have provided to Purchaser in writing the material terms and conditions of such Acquisition Proposal and copies of all material documents relating to such Acquisition Proposal in accordance with this Section 7.05, (3) the Company shall have given Purchaser a five-Business Day period following Purchaser’s receipt of the Change of Recommendation Notice to propose revisions to the terms of this Agreement or make other proposals and shall have negotiated in good faith with Purchaser (and caused its Representatives to negotiate with Purchaser) with respect to such proposed revisions or other proposals, if any, so that the Acquisition Proposal would no longer constitute a Superior Proposal and identifying (4) after considering the Person making results of negotiations with Purchaser and taking into account the Superior Proposal; providedproposals made by Purchaser, howeverif any, that after consultation with its outside legal counsel and its financial advisor, the Company Board shall not enter into an agreement with respect to have determined in good faith that such Acquisition Proposal remains a Superior Proposal unless and that the failure to make the Company shall Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(c)(ii).
(d) For purposes of this Agreement:to enter into
Appears in 1 contract
No Solicitation; Other Offers. (a) The Company Subject to Section 6.7(b), from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement pursuant to Section 11.2(a), Seller shall not, and nor shall not it authorize or permit any of its Subsidiaries tosubsidiaries, 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 toor their respective officers, directors or employees of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) to (i) directly or indirectly solicit, initiate or encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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 agreementagreement or any other agreement with respect to any Acquisition Proposal (each, commitment a “Third Party Acquisition Agreement”), or similar agreement related (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or knowingly take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal. The Seller shall, and shall cause its subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any proposal that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal.
(b) Notwithstanding the foregoing, prior anything to the contrary in Section 6.7(a), at any time of acceptance of after the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption date of this Agreement and prior to the Mergerearlier of the Effective Time and termination of this Agreement pursuant to Section 11.2(a), the Seller may, in response to an unsolicited Acquisition Proposal which did not result from a breach of the Seller’s obligations under this Section 6.7, (i) furnish information with respect to the Seller and its Affiliates to the Person making such Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement, and (ii) participate in discussions or negotiations with such Person and its Representatives regarding any Acquisition Proposal, if the board of directors of the Seller (the “Seller Board”) (A) believes in good faith the Acquisition Proposal to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereofbe bona fide, (iiiB) 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 faith (after consultation with outside legal counsel and a qualified financial advisor) that the recommendation unsolicited Acquisition Proposal sets forth the principal terms and conditions of a nationally recognized transaction that if consummated would be fair to the stockholders of Seller from a financial advisorpoint of view, constitutes a Superior and is reasonably capable of being completed, taking into account all financial, regulatory, legal and other aspects of such Acquisition Proposal, (yC) the Company Board determines in good faith, upon faith (after consultation with outside legal counsel and a qualified financial advisor) that Seller’s ability to consummate the recommendation transactions contemplated by the Acquisition Proposal would be materially impaired by the consummation of the Special Committee after consultation transactions contemplated by the Special Committee with this Agreement, and advice from its outside legal counsel, (D) determines that the failure to take such action any of the above actions would cause the Company Board reasonably be determined to be a breach of its fiduciary duties to the stockholders of the Seller 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 ProposalOhio Law; provided, however, that the Company Seller shall promptly provide to Buyer any material non-public information concerning the Seller or any of its Affiliates that is provided to the Person making such Acquisition Proposal or its Representatives which was not previously provided to Buyer.
(c) Except as expressly permitted by this Section 6.7(c), (i) neither the Seller nor any of its subsidiaries shall approve, publicly propose or enter into any Third Party Acquisition Agreement, (ii) neither Seller nor any of its subsidiaries shall release any third party from, or waive any provisions of, any confidentiality agreement to which Seller is a party except to the extent the Seller Board determines in good faith (after consultation with outside legal counsel) that the failure to so waive the applicable provisions of a confidentiality agreement would reasonably be determined to be breach of the Seller Board’s fiduciary duties to the stockholders of Seller under Ohio Law, and (iii) neither the Seller Board nor any committee thereof shall agree or resolve to take any actions set forth in clause (i) or (ii) of this sentence. Notwithstanding the foregoing, subject to Section 6.7(d), if the Seller Board (A) receives an agreement Acquisition Proposal that has not resulted from a breach of Seller’s obligations under this Section 6.7 and that it determines in good faith (after consultation with outside legal counsel and a qualified financial advisor) that the unsolicited Acquisition Proposal sets forth the principal terms and conditions of a transaction that if consummated would be fair to the stockholders of Seller from a financial point of view, and is reasonably capable of being completed, taking into account all financial, regulatory, legal and other aspects of such Acquisition Proposal, (B) determines in good faith (after consultation with outside legal counsel and a qualified financial advisor) that the Seller’s ability to consummate the transactions contemplated by the Acquisition Proposal would be materially impaired by the consummation of the transactions contemplated by this Agreement, and (C) determines in good faith (after consultation with outside legal counsel) that failure to take any of the following actions would reasonably be determined to be breach of its fiduciary duties to the stockholders of Seller under Ohio Law, then the Seller Board may cause Seller to enter into a Third Party Acquisition Agreement with respect to a Superior Proposal unless the Company such Acquisition Proposal, but only if Seller shall terminate have concurrently with entering into such Third Party Acquisition Agreement terminated this Agreement in accordance with pursuant to Section 8.01(c)(ii11.2(a)(iii).
(d) If the Seller Board determines to authorize the Seller to enter into a Third Party Acquisition Agreement with respect to an Acquisition Proposal as provided in the second sentence of Section 6.7(c), the Seller may only enter into such Third Party Acquisition Agreement (i) at a time that is after the end of the fifth (5th) Business Day following Buyer’s receipt of written notice from the Seller (a “Seller Adverse Recommendation Notice”) advising the Buyer that the Seller Board intends to authorize the Seller to enter into such Third Party Acquisition Agreement, which notice shall contain a copy of the Acquisition Proposal to which such Third Party Acquisition Agreement relates and other material transaction documents; provided, that any material amendment to or modification of the terms of such Acquisition Proposal after the initial Seller Adverse Recommendation Notice shall require a new Seller Adverse Recommendation Notice and five (5) additional Business Days plus the remaining days, if any, from the five (5) Business Day period referred to above, it being understood that any change in the purchase price or form of consideration in such Acquisition Proposal shall be deemed a material amendment or modification) affording Buyer an opportunity to make an alternative proposal, and (ii) if prior to the expiration of such five (5) Business Day period, Buyer does not make a proposal to adjust the terms and conditions of this Agreement that the Seller Board determines in good faith (after consultation with a qualified financial advisors and outside legal counsel) to be at least as favorable as the Acquisition Proposal after giving effect to, among other things, the payment of the Breakup Fee and all the changes proposed by Buyer in response to the Seller Adverse Recommendation Notice or otherwise.
(e) For purposes of this Agreement:, the term “Acquisition Proposal” means any inquiry, proposal or offer relating to a possible (A) amalgamation, merger, consolidation, tender offer or similar transaction involving the Seller’s entire business, including the Business; (B) sale, lease or other disposition, directly or indirectly (including by way of merger, consolidation, share or unit exchange or otherwise) of all or substantially all of the Seller’s assets, including the Assets, whether in a single transaction or a series of related transactions; (C) issuance, sale or other disposition of (including by way of merger, consolidation, share or unit exchange or otherwise) Seller’s securities (or options, rights or warrants to purchase or securities convertible into, such securities) other than option grants to employees of the Seller in the Ordinary Course of Business or any issuance, sale or other disposition that will close after the Closing Date and shall not preclude the consummation of the Closing; (D) liquidation, dissolution, recapitalization or other similar type of transaction with respect to Seller other than any such transaction that will close after the Closing Date and shall not preclude the consummation of the Closing; (E) transaction which is similar in form, substance or purpose to any of the foregoing transactions; or (F) public announcement of an agreement, proposal, plan or intent to do any of the foregoing; provided, however, that the term “Acquisition Proposal” will not include the transactions contemplated hereby.
Appears in 1 contract
No Solicitation; Other Offers. (a) The Neither the Company shall not, and shall not permit nor any of its Subsidiaries toshall, and nor shall cause its officers, directors and employees, and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it the Company or any of its Subsidiaries authorize or permit any of its or their Representatives to, and the Company shall instruct, and cause each applicable Subsidiary and Affiliate, if any, to instruct, each such Representative not to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 7.03(b), (as hereinafter definedi) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company 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. Any violation of the foregoing restrictions by any of its Subsidiaries to, afford access to the Company's representativesbusiness, whether properties, assets, books or not such representative is so authorized and whether or not such representative is purporting to act on behalf records of the Company or otherwiseany of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that is seeking to make, or has made, any Acquisition Proposal, (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (B) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of Delaware Law, or (C) amend or grant any waiver or release or approve any transaction or redeem any Company Rights under the Company Rights Agreement, except in connection with the transactions contemplated by this Agreement, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal. Subject to Section 7.03(b), neither the Company Board nor any committee thereof shall be deemed fail to make, withdraw or modify in a breach manner adverse to Parent or Merger Subsidiary the Board Recommendation, or recommend an Acquisition Proposal, fail to recommend against acceptance of this Agreement by any tender offer or exchange offer for the CompanyCompany Shares within 10 Business Days after the commencement of such offer, or take any action or make any public statement inconsistent with the Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an “Adverse Recommendation Change”). The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company its and its Subsidiaries their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions and or negotiations, if any, with any Persons Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and, and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of the extent within Company or any of its power, to recover Subsidiaries that was furnished by or cause to be destroyed all information concerning on behalf of the Company and its Subsidiaries at any time after September 30, 2006, to return or destroy (and confirm destruction of) all such information.
(b) Notwithstanding the foregoing, prior to the acceptance for payment of Company Shares under the Offer (in the possession case of clauses (i) through (iii) below), the Company Board, directly or indirectly through any Representative, may (i) engage in negotiations or discussions with any Third Party that, subject to the Company’s compliance with this Section 7.03, has made (and not withdrawn) a bona fide Acquisition Proposal in writing that the Company Board reasonably believes, after considering the advice of its outside legal counsel and of a financial advisor of nationally recognized reputation, constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal, (ii) thereafter furnish to such Third Party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement with terms not materially less favorable to the Company than those contained in the Confidential Disclosure Agreement dated as of January 2, 2007 between the Company and Parent (the “Confidentiality Agreement”) and containing additional provisions that expressly permit the Company to comply with the terms of this Section 7.03 (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of such Persons and their affiliatesSuperior Proposal, representatives and advisorsmake an Adverse Recommendation Change and/or (iv) take any non-appealable, final action that any court of competent jurisdiction orders the Company to take, but in each case referred to in the foregoing clauses (i) through (iii), only if the Company Board determines in good faith by a majority vote, after considering the advice of outside legal counsel to the Company, that it is necessary or appropriate to take such action to comply with its fiduciary duties under Applicable Law. Nothing contained in this Agreement herein shall prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) or Rule 14e-2 Item 1012(a) of Regulation M-A under the Exchange 1934 Act with respect regard to an Acquisition Proposal; provided that nothing in this sentence shall be deemed to excuse any failure otherwise to comply with the requirements of this Section 7.03(b) .
(c) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of the preceding subsection unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than 24 hours) after receipt by the Company or any of its Subsidiaries (or any of their respective Representatives) of any Acquisition Proposal or making any disclosure inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company's stockholders Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that, in to the good faith judgment knowledge of the majority Company, is seeking to make, or has made after the date hereof, an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent informed, as promptly as practicable, of the status and details of any such Acquisition Proposal. The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to 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 which 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 is 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 consider 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 promptly provide Parent with any non-public information concerning the Company’s business, present or future performance, financial condition or results of operations, provided to any Third Party that was 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse previously provided 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
Samples: Merger Agreement (Oracle Corp)
No Solicitation; Other Offers. (ai) The From the date of this Agreement until the termination of this Agreement or the Effective Time, whichever first occurs, the Company shall not, and shall cause the Subsidiaries not permit any of its Subsidiaries to, and shall use its best efforts to cause its the officers, directors and directors, employees, affiliates, representatives and any other agents (including attorneys, investment bankers, consultants, financial advisors, bankers and accountants, agents or other representatives retained by it or any ) of its the Company and the Subsidiaries not to, directly or indirectly, solicit, initiate or encourage the submission any inquiry, proposal, indication of interest or offer from any person that constitutes or would reasonably be expected to lead to any Acquisition Proposal (as hereinafter defined) or engage in enter into discussions or negotiations negotiate with any person or furnish entity in furtherance of any such inquiries, proposals, indications of interest or offers or to obtain or approve any Person any information with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation , or agree to or endorse any Acquisition Proposal, and the Company shall immediately notify Acquiror of the foregoing restrictions all relevant terms of any such inquiries, proposals, indications of interest or offers received by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwiseany Subsidiary or by any such officer, shall be deemed a breach director, employee, affiliate, representative or agent, relating to any of this Agreement by such matters, any material change in the Company. The Company shalldetails (including any amendments or proposed amendments) of any such inquiries, and shall cause its Subsidiaries and proposals, indications of interest or offers, the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives identity of each of the Company and its Subsidiaries topersons or entities making such inquiries, cease immediately and cause to be terminated all activitiesproposals, discussions and negotiationsindications of interest or offers, and, if anyany such inquiry, with any Persons conducted prior to the date hereof with respect to any Acquisition Proposal andproposal, to the extent within its powerindication of interest or offer is in writing, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliatesshall immediately deliver a copy thereof to Acquiror; provided, 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 thathowever, 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)that if, 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)Effective Time, the Company shall receive an Acquisition Proposal (that was not solicited after January 9, 1998), from a New Bidder (as defined below) that the Board of Directors of the Company, after receiving the written advice of its legal counsel, reasonably believes that it has a fiduciary duty to consider, then the Company, without violating this Agreement, may negotiate thereafter furnish information to and enter into discussions or otherwise engage in substantive discussions withnegotiations with such New Bidder making such Acquisition Proposal; provided that, and furnish nonpublic before furnishing any information to, or entering into discussions or negotiations with, 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 New Bidder, 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 shall have obtained an executed confidentiality agreement in a form containing confidentiality, "standstill" and other customary terms and conditions 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 the Confidentiality Agreement (as defined in Section 9.5). Neither the Board 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 Directors of the Special Committee after consultation by the Special Committee with and advice from its outside legal counselCompany, that the failure to take such action would cause the Company Board to breach its fiduciary duties under applicable Law.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof thereof, shall (iA) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to ParentAcquiror, its the approval or recommendation to its stockholders referred to in Section 1.02 hereof, by the Board of Directors or take any action not explicitly permitted by such committee thereof of this Agreement that would be inconsistent with its approval of the Offer and or the Merger, (iiB) approve or recommend, or publicly propose to approve or recommend, recommend any Acquisition Proposal or Proposal, (iiiC) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related with respect to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (iiD) take any action to withdrawfacilitate any other Acquisition Proposal in any respect, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereof, (iiiE) to approve or recommend any Superior Proposal or (iv) to terminate this Agreement in accordance connection with any Acquisition Proposal; provided that, nothing contained in this Section 8.01(c)(ii4.1(a) hereof and in connection therewith enter into an agreement with respect to such Superior Proposalor any other provision of this Agreement shall prevent the Board of Directors or any committee thereof, but only if in each case (x) the Company has received after receiving an Acquisition Proposal which as described in the Company Board determines in good faithimmediately preceding sentence that, upon after receiving the recommendation written advice of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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, the Board of Directors reasonably believes that the failure it has a fiduciary duty 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; providedconsider, howeverfrom considering, 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:negotiating, approving
Appears in 1 contract
Samples: Merger Agreement (Mediq Inc)
No Solicitation; Other Offers. (a) Except as expressly permitted pursuant to Section 9.11(b) and Section 9.11(c), the Company shall not, and it shall cause its Subsidiaries and their respective Representatives not to, directly or indirectly: (i) solicit, initiate, entertain or knowingly encourage (including by way of providing information) the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal; (ii) provide any non-public information concerning the Company or any of its Subsidiaries to any Person or group who would reasonably be expected to make any actual or proposed Takeover Proposal; (iii) engage in any discussions or negotiations with respect to any Takeover Proposal; (iv) approve, support, adopt, endorse or recommend any Takeover Proposal; or (v) otherwise cooperate with or assist or participate in, or knowingly facilitate any such inquiries, proposals, offers, discussions or negotiations. Except as expressly permitted pursuant to Section 9.11(b) and Section 9.11(c), the Board shall not directly or indirectly (A) fail to make, withdraw, change, modify or condition, in a manner adverse to Parent, the recommendation by the Board that the Securityholders adopt this Agreement (the “Company Recommendation”), (B) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, to the Securityholders a Takeover Proposal or Superior Proposal or (C) fail to recommend against a tender or exchange offer related to a Takeover Proposal or Superior Proposal in any position taken pursuant to Rule 14e-2 under the Exchange Act (any such action referred to in clauses (A)-(C) above, a “Company Adverse Recommendation Change”).
(b) Notwithstanding anything to the contrary contained in this Section 9.11, if at any time prior to obtaining the Stockholder Consent, the Company or any of its Representatives receives a Takeover Proposal that was made or renewed after the date of this Agreement and did not result from or arise in connection with any breach of Section 9.11(a) and the Board (or a duly constituted committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that the failure to take any of the following actions would be inconsistent with the Board’s fiduciary duties under applicable Law, then (i) the Company and its Representatives may provide information (including non-public information) to the applicable Bidder or provide access to the books, assets and personnel of the Company, and (ii) engage in any discussions or negotiations with such Bidder and its Representatives; provided that the Company shall only permit non-public information related to the Company to be provided pursuant to an Acceptable Confidentiality Agreement and, provided further, that the Company shall (A) deliver written notice to Parent no later than one (1) day after taking any action permitted pursuant to this Section 9.11(b) and, to the extent not previously delivered pursuant to Section 9.11(d), deliver a copy (or, if not in writing, an accurate written summary and description, including all material terms and information conveyed pursuant thereto) of the Takeover Proposal and any other materials, communication or information received by the Company or any of its Representatives (whether written or oral) in connection with or pursuant to such Takeover Proposal to Parent; (B) shall promptly (and in any event within 24 hours of providing such non-public information to the Bidder) provide to Parent any such non-public information that was not previously provided or made available to Parent; (C) within 24 hours of the Board’s (or a duly constituted committee thereof), the Company’s or any of its Representative’s receipt thereof, deliver a copy of (or, if not in writing, an accurate written summary and description, including all material terms and information conveyed pursuant thereto) any revisions, amendments, supplements or modifications to the Takeover Proposal or an updated Takeover Proposal and any other additional material documents, communications or information received by the Board (or a duly constituted committee thereof), the Company or any of its Representatives (whether written or oral) in connection with or pursuant to such Takeover Proposal; and (D) shall keep Parent reasonably informed orally and in writing as to the status of any material developments concerning the Takeover Proposal, including prompt written notice to Parent of any determination by the Board (or a duly constituted committee thereof) that a Superior Proposal has been made.
(c) If the Board (or a duly constituted committee thereof) determines in its good faith judgment, after consultation with its outside financial advisors and outside legal counsel, that such Takeover Proposal constitutes a Superior Proposal and that the failure to take any of the following actions would be inconsistent with the Board’s fiduciary duties under applicable Law, then, (i) the Board may effect a Company Adverse Recommendation Change, (ii) the Company may waive, modify, amend or release any standstill or similar provisions with respect to such Superior Proposal and (iii) the Company or its Subsidiaries may enter into a definitive agreement to consummate such Superior Proposal if the Company shall have, concurrently with entering into such agreement, terminated this Agreement pursuant to Section 12.1(e); provided, that during the two Business Day-notice period referred to in Section 9.11(d), the Company shall (I) be prohibited from taking any of the actions set forth in clauses (i) — (iii), and (II) have negotiated in good faith with Parent and Merger Sub (to the extent Parent and Merger Sub desire to negotiate) to permit Parent and Merger Sub to make adjustments to the terms and conditions of this Agreement (as adjusted, a “Matching Bid”) as may be necessary to make the Merger contemplated under such Matching Bid equivalent to, or better than, the Superior Proposal.
(d) The Company shall promptly (and, in any event, within one (1) Business Day after receipt thereof) notify Parent in writing in the event the Company, any of its Subsidiaries or any of their respective Representatives receives a Takeover Proposal, any request for non-public information concerning the Company or any of its Subsidiaries from any Person who would reasonably be expected to make a Takeover Proposal, or any request for discussions or negotiations related to any Takeover Proposal or potential Takeover Proposal (including any material changes related to the foregoing). Such notice shall include the identity of the Person making such Takeover Proposal or request and the material terms and conditions thereof (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements). The Company shall provide Parent at least two (2) Business Days prior written notice that the Board intends to make a Company Adverse Recommendation Change, which such notice shall include copies of all proposed definitive agreements with respect to the Superior Proposal.
(e) Except as expressly permitted pursuant to this Section 9.11, the Board shall not grant any waiver or release under any “standstill agreement” with respect to any class of Equity Interests of the Company. The Company shall not, and shall not permit any of its 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 their respective Representatives to, solicit, initiate or encourage enter into any confidentiality agreement subsequent to the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach date of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of that prohibits the Company and its Subsidiaries to, cease immediately and cause from providing to Parent the information specifically required to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior provided to the date hereof with respect Parent pursuant 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. this Section 9.11.
(f) Nothing contained in this Agreement Section 9.11 shall prevent prohibit 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 Stockholders that, in the good faith judgment determination 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 LawLaws.
(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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
No Solicitation; Other Offers. (a) The Company From and after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, except with the prior written consent of Purchaser, Seller shall not, and shall not permit any cause each Smartposting Group Company and each of its 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 Smartposting Companies’ Representatives not to, directly or indirectly, (a) solicit, initiate 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 submission making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (b) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Purchaser, (as hereinafter definedc) or engage in discussions or negotiations or furnish to any Person other than Purchaser any information with respect that Seller or Smartposting believes or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or knowingly facilitate take any effort other action regarding any inquiry, expression of interest, proposal or attempt offer that constitutes, or would reasonably be expected to make lead to, an Acquisition Proposal. Any violation , (d) 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 (e) submit any Acquisition Proposal or any matter related thereto to the vote of the foregoing restrictions by any stockholders of Smartposting. Except with the Company's representativesprior written consent of Purchaser, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company Seller shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the each Smartposting Company and each of its Subsidiaries to, and Smartposting Companies’ Representatives to immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement 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 (and in any event within 24 hours) provide Purchaser with: (i) an oral and a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition 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 any Smartposting Group Company or any Representatives of any Smartposting Group Company from any Person (other than Purchaser), including in such description the identity of the Person from which such expression of interest, inquiry, proposal, offer or 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 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 each written communication and a party or to which the Company is subject unless the Company Board determines in good faith, upon the recommendation complete summary of each other communication transmitted on behalf 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor Other Interested Party or any committee thereof shall (i) 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, (ii) approve Other Interested Party’s Representatives to any Smartposting Group Company or recommend, any Representatives of any Smartposting Group Company or publicly propose to approve transmitted on behalf of any Smartposting Group Company or recommend, any Acquisition Proposal or (iii) cause the Representatives of any Smartposting Group Company to enter into the Other Interested Party or any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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)Other Interested Party’s Representatives.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Share Purchase Agreement (IE LTD)
No Solicitation; Other Offers. (a) The During the Pre-Closing Period, neither the Company shall notnor any Seller will, and shall not permit any of its Subsidiaries to, the Company and shall each Seller will cause its officers, directors such Person’s respective controlled Affiliates and employees, direct such Person’s representatives (including employees and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it or any of its Subsidiaries service providers) not to, directly or indirectly, (i) solicit, initiate 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 submission 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 Buyer, (as hereinafter definediii) or engage in discussions or negotiations or furnish to any Person other than Buyer any information that the Company or such Seller believes or should reasonably know would 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, (v) submit any Acquisition Proposal or any matter related thereto to the vote of the holders of equity interests of the Company, (vi) amend or grant any waiver or release under any standstill or similar agreement with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Any violation class of the foregoing restrictions by any of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf equity securities of the Company or otherwisethe 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 deemed a responsible for any breach of this Agreement Section 7.19 by the Company. any of its representatives (including employees and service providers).
(b) The Company shalland the Sellers will, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries each Seller will cause such Person’s respective Affiliates and representatives to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement with respect to any Acquisition Proposal and, Proposal. Subject to any confidentiality obligations by which the extent within its power, to recover or cause to Company may be destroyed all information concerning bound under the terms of any confidentiality agreement between 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.
Other Interested Party (bas defined below) Notwithstanding the first sentence of Sections 6.05(a), entered into prior to the time of acceptance of Shares pursuant to the Offer and subject to the provisions date of this Section 6.05(b) and Section 6.05(c)Agreement, during the Pre-Closing Period, the Company may negotiate or otherwise engage in substantive discussions with, shall promptly (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 event within one Business Day from the Shares outstanding or fifty percent of the consolidated assets of the Company if receipt thereof) provide Buyer with: (i) a majority description of the Company Board determines in good faithany expression of interest, upon the recommendation of the Special Committee after the Special Committee has received the advice of Xxxxxxxx Xxxxx inquiry, proposal or another nationally recognized financial advisoroffer relating to a possible Acquisition Proposal, or any request for information that such Acquisition Proposal would reasonably be expected to result in be used for the purposes of formulating any inquiry, proposal or offer regarding a Superior Proposal (as hereinafter defined) and, after consultation with and advice from outside legal counselpossible Acquisition Proposal, that is received by the failure to take such action would cause Company, 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 Blocker or any information to Seller or entering into discussions or negotiations with any of their respective representatives from any Person (other than Buyer), including 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 description the identity of the Person making itfrom which such expression of interest, inquiry, proposal, offer or request for information was received (the “Other Interested Party”) as promptly as practicable and (but in no case later than 24 hoursii) after its receipt thereof, and shall provide Parent with a copy of any each written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent communication transmitted on a prompt basis behalf of the status Other Interested Party or any of any discussions or negotiations with such a third party, and any material changes the Other Interested Party’s representatives to the terms Company, the Blocker, any Seller or any of their respective representatives or transmitted on behalf of the Company, the Blocker, any Seller or any of their respective representatives to the Other Interested Party or any of the Other Interested Party’s representatives, in each case, relating to a possible Acquisition Proposal. Promptly (and conditions in any event within two (2) Business Days) following the execution of such 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, and shall promptly give Parent a copy financing 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 similar transaction, in good faith, upon the recommendation of the Special Committee after consultation by the Special Committee accordance with and advice from its outside legal counsel, that the failure to take any return or destroy obligations included under such action would cause the Company Board to breach its fiduciary duties under applicable Lawnon-disclosure or similar agreements.
(c) Except as permitted by Without limiting the second sentence of this Section 6.05(c)foregoing, neither the Company Board nor any committee thereof shall Buyer understands, acknowledges and agrees that (i) 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 Company has undergone an extensive bid process (the Merger“Bid Process”), (ii) approve the Company may receive further submissions or recommend, offers or publicly propose reach-outs after the date hereof pursuant to approve or recommend, any Acquisition Proposal or the Bid Process and (iii) cause the Company to enter into 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 letter such acknowledgment of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offerreceipt, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of inform the Offer and/or approval third party making such submission or offer or reach-out that the Bid Process has concluded and adoption of this Agreement and that the Merger, (ii) to withdraw, or modify Company is contractually restricted from engaging 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 discussions 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 1 contract
Samples: Securities Purchase Agreement (e.l.f. Beauty, Inc.)
No Solicitation; Other Offers. (a) The Company shall not, and shall not permit any of its Subsidiaries to, and shall cause use its best efforts to ensure that its officers, directors and or employees, and or any investment bankers, consultants, financial advisors, accountants, agents consultants or other representatives agents retained by it or any of its Subsidiaries do not to, solicit, initiate or initiate, encourage the submission of any Acquisition Proposal (as hereinafter defined) 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. Any violation The Company will notify Parent within 48 hours of receipt by the foregoing restrictions 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's representatives, whether is making or not considering making or who has made, an Acquisition Proposal. The Company shall provide such representative is so authorized notice orally and whether in writing including the terms and conditions of any such Acquisition Proposal or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Companyrequest. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, and other agents or other representatives 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 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 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 thatshareholders if, in the good faith judgment of the majority of the disinterested members of the Company Board, upon recommendation Board of Directors of the Special Committee after consultation Company, failure to so disclose would be inconsistent with and advice from its outside legal counsel, is required by applicable Lawlaw.
(b) Notwithstanding the first sentence of Sections Section 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) the Company has complied with the terms of this Section 6.05, (ii) a majority of the Board of Directors of the Company Board reasonably 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, faith that such Acquisition Proposal would could 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 could reasonably be deemed to constitute a breach of its fiduciary duties under applicable Lawlaw, and (iiiii) such Person executes a confidentiality agreement in a substantially the form no less favorable to the Company than of 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, Agreement (including 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 Lawprovisions).
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Board of Directors of the Company Board nor any committee thereof shall (i) 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, (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, commitment agreement or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time The Board of acceptance Directors of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 stockholders shareholders 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 (w) the Company has complied with the terms of this Section 6.05, (x) the Company has received an Acquisition Proposal which the Company Board of Directors determines in good faith, upon the recommendation of a nationally recognized financial advisor, faith constitutes a Superior Proposal, (y) the Board of Directors of 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 could reasonably be deemed to breach be inconsistent with its fiduciary duties under applicable Law law, and (z) after five no such action is taken earlier than the third full Business Days have elapsed Day following Parent's receipt of written notice of the intention of the Company's delivery Board of Directors 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)do so.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Block Drug Co Inc)
No Solicitation; Other Offers. (a) The From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, except as otherwise expressly set forth in this 6.04, the Company shall not, and shall not permit any of its 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, and shall instruct its and its Subsidiaries’ respective directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage the submission of any Acquisition Proposal Proposal, (as hereinafter definedii) enter into or engage participate in any discussions or negotiations or with, furnish to any Person any information with respect 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, otherwise knowingly cooperate in any way with, or knowingly assist or participate in any effort by any Third Party relating to an Acquisition Proposal or knowingly facilitate any effort inquiry, expression of interest, proposal or attempt request for information that would reasonably be expected to make lead to an Acquisition Proposal. Any violation Proposal (other than requesting the clarification of the foregoing restrictions by any of terms and conditions thereof so as to determine whether the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause its Subsidiaries and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives 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 andis, 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 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor any committee thereof shall (i) 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, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company (A) fail to enter into any letter of intentmake, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii) to withdraw, withdraw or modify in a manner adverse to Parent the Company Board Recommendation (it being understood that any failure to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of Parent’s written request will be treated as a withdrawal of the Company Board Recommendation for purposes hereof (provided that Parent makes such request only after a material development has occurred that Parent believes, its recommendation in good faith, has created public uncertainty as to its stockholders referred the position of the Board of Directors of the Company or whether the Company Stockholder Approval will be obtained and that Parent may only make such request once with respect to in Section 1.02 hereofany Acquisition Proposal that has not been amended with respect to financial or other material terms)), (iiiB) fail to include the Company Board Recommendation in the Proxy Statement or (C) recommend, adopt or approve or recommend publicly propose to recommend, adopt or approve any Superior Acquisition Proposal or (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) take any action to terminate this Agreement in accordance with make any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations of the State of Delaware, including Section 8.01(c)(ii203 of the Delaware Law, inapplicable to any Third Party or any Acquisition Proposal, or (v) hereof and in connection therewith enter into an fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to such Superior Proposal, but only if in each case (x) any class of equity securities of the Company has received an Acquisition Proposal which the Company Board determines in good faith, upon the recommendation or any of a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 Subsidiaries. If any Representative takes any 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; providedis obligated pursuant to this Section 6.04 not to take, however, that then 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 be deemed for purposes of this Agreement:Agreement to have breached this Section 6.
Appears in 1 contract
No Solicitation; Other Offers. (a) The Company shall After the date hereof and prior to the Closing Date or earlier termination of this Agreement in accordance with its terms, the Sellers will not, and shall not permit any of its the Sellers will cause their Subsidiaries to, and shall cause its Affiliates and the officers, directors and directors, employees, and any investment bankers, consultantsattorneys, financial advisors, accountants, consultants and other agents or other representatives retained by it or any and advisors of its the Sellers and their Subsidiaries and Affiliates not to, directly or indirectly, (i) take any action to encourage, solicit, initiate or encourage knowingly facilitate the submission of any Acquisition Proposal or (as hereinafter definedii) encourage or engage in discussions or negotiations with, or furnish disclose any nonpublic information relating to the Targeted Businesses or afford access to the properties, books or records of the Targeted Businesses or of the Sellers regarding the Target Assets to, 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 information with respect to event, within forty-eight hours of any Acquisition Proposal received by the Sellers or any of their Subsidiaries or any of their representatives, Affiliates, employees, advisors, agents, officers or directors, any indication that any Person is considering making an Acquisition Proposal or knowingly facilitate any effort request for nonpublic information relating to the Targeted Businesses or attempt for access to make the properties, books or records of the Sellers or any of their Subsidiaries by any Person who is considering making, or has made, an Acquisition Proposal. Any violation The Sellers shall provide such notice orally and in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal, indication or request and shall also include, as and when received, copies of any written offer, proposal or materials received. The Sellers shall keep Purchaser fully informed, on a current basis, of the foregoing restrictions by status and details of any of the Company's representativessuch Acquisition Proposal, whether indication or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach request. Upon execution of this Agreement by Agreement, the Company. The Company shall, Sellers shall and shall cause its Subsidiaries their Subsidiaries, and the their respective officers, directors, employees Affiliates, representatives, consultants and advisors to immediately cease any discussions or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, negotiations with any Persons conducted prior to the date hereof execution of this Agreement with respect to any Acquisition Proposal andand 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 the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries others in the possession of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Company Board from complying connection with Rule 14d-9 or Rule 14e-2 under the Exchange Act with respect to any potential 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 LawProposal.
(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)foregoing, the Company Sellers may negotiate or otherwise engage in substantive discussions or negotiations with, and furnish nonpublic information or access 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 received without violation of the Shares outstanding or fifty percent of the consolidated assets of the Company this Agreement if (i) a majority the Sellers have complied with the terms of Section 5.2(a), (ii) the Company Board of Directors of Sylvan or the Special Committee of Sylvan, as appropriate, 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, faith 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 be deemed to constitute a breach of its fiduciary duties under applicable Lawlaw, and (iiiii) such Person executes a confidentiality agreement in a form with terms no less favorable to the Company Sellers than those contained in the Confidentiality AgreementAgreement and (iv) the Sellers shall have delivered to Purchaser three Business Days’ prior written notice (the “First Notice”) advising Purchaser that it intends to take such action. Prior 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 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 providing any information Section 7.3(a)(x) or 7.3(a)(y). If Purchaser elects the Termination Fee pursuant to or entering into discussions or negotiations 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 any respect to a Person in connection with that has provided an Acquisition Proposal by unless such Person, the Company shall notify Parent of any Person provides a new 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 following 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 matching offer by Purchaser pursuant 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 LawSection 7.1(c)(ii)(D).
(c) Except as permitted by the second sentence Nothing contained in this Section 5.2 or any other provision of this Section 6.05(c)Agreement shall prohibit the Sellers or any director, neither officer, agent or employee of the Company Board nor any committee thereof shall Sellers from (i) withdraw or modify, or publicly propose taking and disclosing to withdraw or modify, in Sylvan’s shareholders 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, (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, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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 position with respect to a Superior Proposal unless tender or exchange offer by a third party pursuant to Rule 14d-9 and 14e-2 promulgated under the Company shall terminate this Agreement Exchange Act or (ii) making such disclosure to Sylvan’s shareholders as, in accordance the good faith judgment of Sylvan’s Board of Directors after consultation with Section 8.01(c)(ii)outside counsel, is required under applicable law.
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) The From and after receipt of the Written Consent containing the Company Stockholder Approval until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, without the prior consent of Parent, the Company shall not, and shall not permit any cause each of its Subsidiaries to, Representatives and shall cause its officers, directors each of the Acquired Companies (and employees, and any investment bankers, consultants, financial advisors, accountants, agents or other representatives retained by it or any each of its Subsidiaries their respective Representatives) not to, directly or indirectly, (i) solicit, initiate 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 submission 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 Parent, (as hereinafter definediii) or engage in discussions or negotiations or furnish to any Person other than Parent any information with respect that the Company believes or would reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal Proposal, or knowingly facilitate take any effort other action regarding any inquiry, expression of interest, proposal or attempt offer that constitutes, or would reasonably be expected to make lead to, an Acquisition Proposal. Any violation , (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 the Interim Acquisition, or (v) submit any Acquisition Proposal, the Interim Acquisition or any matter related thereto to the vote of the foregoing restrictions by any stockholders of the Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed a breach of this Agreement by the Company. The Company shall, and shall cause each of its Subsidiaries Representatives and the officers, directors, employees or any investment bankers, attorneys, consultants, financial advisors, agents or other representatives each of the Company other Acquired Companies (and its Subsidiaries each of their respective Representatives) to, immediately cease immediately and cause to be terminated any and all existing activities, discussions and negotiations, if any, or negotiations with any Persons conducted prior to or on the date hereof of this Agreement 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 (and in any event within twenty four (24) hours) provide Parent with: (i) an oral and a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition 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 any Acquired Company or any Representatives of any Acquired Company from any Person (other than Parent), including in such description the identity of the Person from which such expression of interest, inquiry, proposal, offer or request for information was received (the “Other Interested Party”); and (ii) 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 each written communication and a party or to which the Company is subject unless the Company Board determines in good faith, upon the recommendation complete summary of each other communication transmitted on behalf 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.
(c) Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board nor Other Interested Party or any committee thereof shall (i) 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, (ii) approve Other Interested Party’s Representatives to any Acquired Company or recommend, any Representatives of any Acquired Company or publicly propose to approve transmitted on behalf of any Acquired Company or recommend, any Acquisition Proposal or (iii) cause the Representatives of any Acquired Company to enter into the Other Interested Party or any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the time of acceptance of the Shares for payment pursuant to the Offer, the Company Board shall be permitted (i) not to recommend to its stockholders 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 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 a nationally recognized financial advisor, constitutes a Superior Proposal, (y) 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 (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)Other Interested Party’s Representatives.
(d) For purposes of this Agreement:
Appears in 1 contract
