No Solicitation; Other Offers. (a) From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the Company and its Subsidiaries will not, and the Company will use its reasonable best efforts to cause the officers, directors, employees, investment bankers, consultants or other agents or representatives (collectively, "Agents") of the Company and its Subsidiaries not to, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal, (ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, the Company may prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. (d) For purposes of this Agreement:

Appears in 2 contracts

Samples: Merger Agreement (Nabisco Inc), Merger Agreement (Philip Morris Companies Inc)

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. (a) ~~From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the~~ The Company ~~and its Subsidiaries will~~ shall not, and ~~the Company will~~ shall not permit any of its Subsidiaries to, and shall use its ~~reasonable~~ best efforts to ~~cause the~~ ensure that its officers, ~~directors,~~ directors or employees, or any investment bankers, consultants or other advisors or agents retained by it or ~~representatives (collectively, "Agents")~~ any of ~~the Company and~~ its Subsidiaries do not ~~to, directly or indirectly, (i)~~ solicit, initiate or intentionally encourage the submission of any Acquisition ~~Proposal, (ii)~~ Proposal or engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company~~ or ~~any of its Subsidiaries~~ furnish to any Person ~~who,~~ any information with respect to ~~the knowledge of the Company, is considering making, or has made,~~ an Acquisition Proposal or ~~(iv) take any other action to~~ knowingly facilitate any ~~inquiries~~ effort or ~~the making of any proposal that constitutes or that could reasonably be expected~~ attempt to ~~lead to~~ make an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other advisors or 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~~Proposal and, to the extent within its power, request that all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisors be returned to the Company or destroyed. Nothing contained in this Agreement shall prevent the Board of Directors ~~of the Company~~ from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition ~~Proposal~~Proposal or making any disclosure to the Company's stockholders if, in the good faith judgment of the Board of Directors, after consultation with and advice from outside legal counsel, failure to make such disclosure would constitute a breach of the fiduciary duties of the Board of Directors under applicable law or otherwise violate applicable law. (b) Notwithstanding the ~~foregoing~~first sentence of Section 7.04(a), 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 Acquisition Proposal by such Person if (i) the ~~Company has complied with the terms of Section 6.04(a), (ii) the~~ Board of Directors ~~of the Company~~ determines in good faith after consultation with and advice from the Company Financial Advisor or a financial advisor of nationally recognized reputation, that such Acquisition Proposal ~~is likely to~~ may result in a Superior Proposal ~~and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law,~~ and (~~iii~~ii) such Person executes a confidentiality agreement ~~with terms~~ no less favorable to the Company than ~~those contained in~~ the Confidentiality Agreement (~~except as to~~ including the standstill ~~provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action~~provisions thereof). (c) The Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours after its receipt, and in any event 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; shall promptly inform Parent 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 deliver to Parent a copy of any information delivered to such person which has not previously been delivered by the Company to Parent. (d) Except as permitted by the second sentence of this Section 7.04(d), neither the Board of Directors nor any committee thereof shall (1) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, its recommendation to its stockholders, or take any action not explicitly permitted by this Agreement that would be inconsistent with, its approval of the Offer and the Merger, (2) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (3) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement or document related to any Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors shall be permitted (1) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (2) to withdraw, or modify in a manner adverse to Parent, its recommendation to its ~~stockholders referred~~ stockholders, (3) to approve or recommend any Superior Proposal or (4) to terminate this Agreement in accordance with Section ~~6.02 hereof~~11.01(c)(ii) below and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (~~i) the Company has complied with the terms of Section 6.04(a), (ii~~y) the Company has received an ~~unsolicited~~ 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,~~ Proposal and (~~iii~~z) the Board of Directors of the Company determines in good faith, after consultation with and advice from outside legal counsel, that the failure to take such action would ~~constitute a breach of~~ not be consistent with its fiduciary duties under applicable ~~law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action~~law. (de) For purposes of this Agreement:

Appears in 2 contracts

Samples: Merger Agreement (Comshare Inc), Merger Agreement (Comshare Inc)

No Solicitation; Other Offers. The Company 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 (~~a) From~~ including any investment banker, attorney, accountant or other 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 date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the Company and its Subsidiaries will not, and the Company will use its reasonable best efforts to cause the officers, directors, employees, investment bankers, consultants or ~~other agents or representatives~~ any time hereafter) (collectively, ~~"Agents"~~“Representatives”) not to, directly or indirectly, initiate, solicit or knowingly encourage or facilitate any Acquisition Proposal. The Company further agrees that neither it nor any of its Subsidiaries nor any of the ~~Company~~ officers and directors of it or its Subsidiaries shall, and that it shall cause its and its ~~Subsidiaries~~ Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, (i) ~~solicit~~engage in any negotiations concerning, ~~initiate~~ or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise knowingly encourage ~~the submission of~~ or facilitate any effort or attempt to make or implement an Acquisition Proposal, (ii) ~~engage in discussions~~ amend or ~~negotiations~~ grant any waiver or release under any standstill or similar agreement with respect to any ~~Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to~~ class of equity securities of the Company or any of its Subsidiaries to (unless Parent’s obligations under the standstill provisions contained in the Confidentiality Agreement dated May 27, 2005 between the Company and Parent (the “Confidentiality Agreement”) are simultaneously waived), (iii) approve any ~~Person who~~transaction under, ~~to the knowledge~~ or any Third Party becoming an “interested stockholder” under, Section 203 of the ~~Company~~Delaware Law, ~~is considering making~~(iv) amend or grant any waiver or release or approve any transaction or redeem any Company Rights under the Company Rights Agreement, ~~or has made,~~ (v) make any Adverse Company Recommendation Change in connection with an Acquisition Proposal or (ivvi) ~~take~~ enter into any ~~other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead~~ definitive agreement with respect to an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who; provided, ~~to the knowledge of the Company~~however, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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. Nothing that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (1) complying with its disclosure obligations under Sections 14d-9 and 14e-2(a) of the ~~Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934~~ Exchange Act with ~~respect~~ regard to ~~any~~ an Acquisition Proposal. ; provided, however, that if such disclosure constitutes an Adverse Company Recommendation Change, Parent shall have the right to terminate this Agreement as set forth in Section 10.01(c)(i) of this Agreement; and (b2) ~~Notwithstanding the foregoing~~at any time prior to, but not after, the time this Agreement is adopted by the Company ~~may prior to receipt of the NGH~~ Stockholder ~~Approval~~ Approval, (~~as defined in the NGH Voting Agreement), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic~~ A) providing information ~~to, any Person~~ in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal ~~by such Person~~ if ~~(i) the Company has complied with the terms of Section 6.04(a), (ii)~~ the Board of Directors of the Company ~~determines in good faith that~~ receives from the Person so requesting such ~~Acquisition Proposal is likely~~ information, prior to ~~result in a Superior Proposal and~~the provision of any such information, ~~after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a~~ an executed confidentiality agreement ~~with~~ on terms no less favorable to the Company than those contained in the Confidentiality Agreement (~~except~~ provided that, such executed confidentiality agreement may contain less favorable standstill provisions as to long as Parent’s obligations under the standstill ~~provisions~~provisions contained in the Confidentiality Agreement are simultaneously waived); (B) ~~and (iv)~~ engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal if the ~~Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The~~ Board of Directors of the Company ~~shall be permitted~~ 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 Company Recommendation Change in connection with such an unsolicited bona fide written Acquisition Proposal to ~~withdraw~~the stockholders of the Company, ~~or modify~~ if and only to the extent that, (x) in ~~a manner adverse to Parent, its recommendation to its stockholders~~ each such case referred to in ~~Section 6.02 hereof, but only if~~ clause (~~i) the Company has complied with the terms of Section 6.04(a~~A), (iiB) ~~the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal~~or (C) above, ~~(iii)~~ the Board of Directors of the Company determines in good ~~faith,~~ 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 the Company 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 the Company’s stockholders from a financial point of view than the transaction contemplated by this Agreement taking into account any change proposed by Parent; and (z) in the case of clause (C), Parent shall have had written notice of the Company’s intention to take the action referred to in clause (C) at least 20 Business Days prior to the taking of such action by the Company (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 Parent with respect to any changes Parent 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 ~~failure~~ acquisition, directly or indirectly, of 50% or more of the voting power of the Company Stock or the assets of the Company and its Subsidiaries taken as a whole (any such more favorable Acquisition Proposal is referred to in this Agreement as a “Superior Proposal”). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal, including any discussions or negotiations with respect to the possible sale of the Flextech Group. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence of this Section 6.03 of the obligations undertaken in this Section 6.03. The Company agrees that it will notify Parent promptly, but in any event within 48 hours if any proposals or offers referred to in this Section 6.03 are received by, any such ~~action would constitute a breach~~ information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, it or any of its ~~fiduciary duties under applicable law~~ Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep Parent 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. The Company also agrees to provide any information to Parent that it is providing to another Person pursuant to this Section 6.03 at substantially the same time it provides it to such other Person. The Company agrees promptly, but in any event, within five days after the date of this Agreement, to request the return or destruction of all information and materials provided prior to the date of this Agreement by it, its Affiliates or their respective Representatives (ivand any information derived therefrom) with respect to the consideration or making of any Acquisition Proposal (including with respect to the possible sale of the Flextech Group) and the Company shall ~~have delivered~~ otherwise use its reasonable best efforts to ~~Parent a prior written notice advising Parent that it intends to take such action~~enforce any confidentiality agreement relating thereto. ~~(d) For purposes of this Agreement:~~

Appears in 2 contracts

Samples: Merger Agreement (NTL Inc), Merger Agreement (Telewest Global Inc)

No Solicitation; Other Offers. (a) From the date hereof until the ~~earlier of the Effective Time and the~~ termination ~~of this Agreement in accordance with Article 10~~hereof, the Company ~~and its Subsidiaries~~ will not, and ~~the Company~~ will ~~use~~ cause its ~~reasonable best efforts to cause~~ Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or ~~representatives (collectively, "Agents")~~ 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, (ii) engage in ~~discussions~~ negotiations with, or ~~negotiations with any Person concerning an Acquisition Proposal, (iii)~~ 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~~who has made or, to the ~~knowledge of the~~ Company's knowledge, is considering making, an Acquisition Proposal, or ~~has made~~(iii) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company. Notwithstanding the foregoing sentence, the Company may, in the press release announcing execution of this Agreement, include the following sentence: "Under the Agreement, the Company may furnish information and hold discussions with third parties in appropriate circumstances." Parent and the Company agree further that the issuance of a press release containing the foregoing sentence shall not constitute solicitation, initiation, facilitation or encouragement by the Company or its Subsidiaries of the submission of an Acquisition Proposal ~~or (iv) take any other action to facilitate any inquiries or the making~~ in violation of ~~any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal~~this Section 7.03(a). The Company will notify Parent promptly (but in no event later than ~~24 hours~~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 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~~who has made or, to the ~~knowledge of the~~ Company's knowledge, is considering making~~, or has made~~, an Acquisition Proposal. The Company shall ~~promptly~~ provide such notice orally and in writing and shall identify the Person making, and ~~all~~ the terms and conditions of, any such Acquisition ~~Proposal~~ Proposal, indication or request. The Company shall keep Parent ~~promptly informed~~ fully informed, on a current basis, of the status and details of any such Acquisition ~~Proposal (including amendments~~ Proposal, indication or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposalrequest. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with ~~Rule~~ its fiduciary duties or Rules 14d-9 ~~or Rule~~ and 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, the Company may ~~prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement),~~ negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person ~~in response to an unsolicited~~ who delivers a written Acquisition Proposal ~~by such Person~~ if (i) the Company has complied with the terms of this Section ~~6.04(a)~~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 has determined in good faith, based on the terms of such Acquisition Proposal, including the proposed consideration per Share, that such Acquisition Proposal could reasonably be expected to result in a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith that such ~~Acquisition Proposal~~ action is ~~likely to result~~ in ~~a Superior Proposal and, after consultation with outside legal counsel, that~~ the ~~failure to take such action would constitute a breach~~ best interests of ~~its fiduciary duties under applicable law~~the Company's shareholders, (~~iii~~iv) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement ~~(except as to the standstill provisions)~~ and (ivv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. (c) Except as provided in the next sentence, the Board of Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's shareholders. The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its ~~stockholders~~ shareholders referred to in Section ~~6.02 hereof~~7.02 hereof and recommend or authorize the Company to enter into (and the Company may enter into) an agreement with respect to a Superior Proposal, but only if (i) the Company has complied with the terms of this Section ~~6.04(a)~~7.03, (ii) a Superior Proposal is pending at the ~~Company has received an unsolicited Acquisition Proposal which~~ time the Board of Directors of the Company determines ~~in good faith constitutes a Superior Proposal~~to take any such action, (iii) the Board of Directors of the Company determines in good ~~faith, after consultation with outside legal counsel,~~ faith that ~~the failure to take~~ such action ~~would constitute a breach~~ is in the best interests of ~~its fiduciary duties under applicable law and~~ the Company's shareholders, (iv) the Company shall have delivered to Parent a at least five business days prior written notice advising Parent that it intends to take such ~~action~~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 good faith (after consultation with 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 (Catherines Stores Corp), Merger Agreement (Charming Shoppes Inc)

No Solicitation; Other Offers. (a) ~~From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the~~ The Company ~~and its Subsidiaries will~~ shall not, and ~~the Company will use~~ shall not permit any of its ~~reasonable best efforts to~~ Subsidiaries to, and shall cause ~~the~~ its officers, ~~directors,~~ directors and employees, and any investment bankers, ~~consultants~~ consultants, financial advisors, accountants, agents or other ~~agents~~ representatives retained by it or ~~representatives (collectively, "Agents")~~ any of ~~the Company and~~ its Subsidiaries not to, ~~directly or indirectly, (i)~~ solicit, initiate or encourage the submission of any Acquisition ~~Proposal,~~ Proposal (iias hereinafter defined) or engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company~~ or ~~any of its Subsidiaries~~ furnish to any Person ~~who,~~ any information with respect to ~~the knowledge of the Company, is considering making, or has made,~~ an Acquisition Proposal or ~~(iv) take any other action to~~ knowingly facilitate any ~~inquiries~~ effort or ~~the making of any proposal that constitutes or that could reasonably be expected~~ attempt to ~~lead to~~ make an Acquisition Proposal. ~~The Company will notify Parent promptly (but in no event later than 24 hours) after receipt~~ Any violation of the foregoing restrictions by any of the ~~Company~~ Company's representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of ~~any Acquisition Proposal or any request for nonpublic information relating to~~ the Company or ~~any~~ otherwise, shall be deemed a breach of ~~its Subsidiaries~~ this Agreement by ~~any Person who, to the knowledge of~~ the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ 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~~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 ~~of Directors of the Company~~ from complying with Rule 14d-9 or Rule 14e-2 under the ~~1934~~ Exchange Act with respect to any Acquisition ~~Proposal~~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 ~~foregoing~~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 ~~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) ~~the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors~~ a majority of the Company Board determines in good ~~faith~~ 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 ~~is likely~~ 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 ~~constitute a~~ cause the Company Board to breach of its fiduciary duties under applicable ~~law~~Law, and (~~iii~~ii) such Person executes a confidentiality agreement ~~with terms~~ in a form no less favorable to the Company than ~~those contained in~~ the Confidentiality ~~Agreement (except as~~ Agreement. Prior to ~~the standstill provisions) and (iv)~~ 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 ~~have~~ 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 ~~Parent prior written notice advising Parent~~ 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 ~~it intends~~ the failure to take such ~~action~~action would cause the Company Board to breach its fiduciary duties under applicable Law. (c) ~~The~~ Except as permitted by the second sentence of this Section 6.05(c), neither the Company Board ~~of Directors~~ 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 ~~6.02~~ 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 (~~i) the Company has complied with the terms of Section 6.04(a), (ii~~x) the Company has received an ~~unsolicited~~ Acquisition Proposal which the Company Board ~~of Directors~~ determines in good ~~faith~~ faith, upon the recommendation of a nationally recognized financial advisor, constitutes a Superior Proposal, (~~iii~~y) the Company 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 ~~constitute a~~ cause the Company Board to breach of its fiduciary duties under applicable ~~law~~ Law and (ivz) after five Business Days have elapsed following the ~~Company shall have delivered~~ Company's delivery to Parent ~~a prior~~ of written notice advising Parent that ~~it intends~~ 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 ~~take such action~~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) ~~From~~ Except as provided by the remainder of this Section 6.04, from the date hereof until the ~~earlier of the~~ Effective Time ~~and~~ or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, and the Company and its Subsidiaries ~~will not, and the Company will use~~ shall not authorize any of its ~~reasonable best efforts to cause the officers, directors, employees, investment bankers, consultants or~~ other ~~agents or representatives (collectively, "Agents") of the Company and its Subsidiaries not~~ Representatives to, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal, (ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or (iv) take any ~~other~~ action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that ~~constitutes~~ constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law. The Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that ~~could~~ would reasonably be expected to lead to an Acquisition Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will ~~notify Parent~~ promptly ~~(but~~ request each Person that has executed a confidentiality agreement prior to the date hereof in ~~no event later than 24 hours) after receipt by the Company~~ connection with its consideration of ~~any Acquisition Proposal or any request for nonpublic information relating to~~ acquiring the Company or any of its Subsidiaries ~~by any~~ to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information furnished to such Person who, to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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 by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with ~~respect to~~ any Person in connection with any Acquisition ~~Proposal. Nothing~~ Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04. (b) Notwithstanding anything contained in Section 6.04(a) to the contrary, following the receipt of an Acquisition Proposal that was made after the date hereof that did not result from a material breach by the Company, any of its Subsidiaries or its or their respective Representatives of this ~~Agreement shall prevent~~ Section 6.04 and prior to obtaining the Company Stockholder Approval, if (i) the Company or any of its Representatives has received an Acquisition Proposal that the Board of Directors of the ~~Company from complying~~ Company, after consultation with ~~Rule 14d-9~~ its outside legal counsel and with its financial advisor, reasonably believes is or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, the Company may prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to could reasonably result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii~~) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii~~) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would ~~constitute a breach of~~ be inconsistent with its fiduciary duties under ~~applicable law~~ Applicable Law, then, subject to providing written notice to Parent of its decision to take such action and compliance in all material respects with Section 6.04(c), the Company, directly or indirectly through its Representatives, may (A) engage in negotiations or discussions with such Third Party and its Representatives, and (ivB) 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; provided that the Company shall ~~have delivered~~ promptly (and in any event within twenty-four (24) hours) provide to Parent ~~a prior written notice advising Parent~~ any such information relating to the Company that it ~~intends~~ provided to ~~take~~ any such ~~action~~Person which was not previously provided to or made available to Parent. (c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Parent orally and in writing after the receipt by the Company of any Acquisition Proposal or any request for information or access relating to the Company or any of its Subsidiaries with respect to an Acquisition Proposal indicating, in connection with such notice, the name of such Person (except to the extent disclosure of such identity would breach a confidentiality obligation in effect prior to the execution of this Agreement) and the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements, which in each case may be redacted, if necessary to remove the identity of any Third Party to comply with any confidentiality obligation in effect prior to the execution of this Agreement) and thereafter, subject to the foregoing confidentiality qualifications, shall (i) keep Parent reasonably informed, on a prompt and timely basis, of the status and terms of any such proposals or offers (including any material amendments thereto) and the status of any such discussions or negotiations, and (ii) provide to Parent as soon as practicable copies of all written proposals or offers (including proposed agreements) sent or provided to the Company or any of its Subsidiaries from any Person (or such Person’s Representative) making an Acquisition Proposal that describes any of the financial or other material terms or conditions of such Acquisition Proposal. (d) ~~For purposes~~ Except as set forth in Section 6.04(e) and Section 6.04(g), the Board of Directors of the Company and each committee of the Board of Directors of the Company shall not: (i) withhold, withdraw, qualify or modify (or publicly propose or announce any intention to or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Subsidiary, the Company Board Recommendation; (ii) other than in the case of an Acquisition Proposal in the form of a tender offer or exchange offer, fail to publicly affirm the Company Board Recommendation upon Parent’s written request within five (5) Business Days after such request after a public announcement of an Acquisition Proposal; (iii) (A) fail to recommend against acceptance of any tender offer or exchange offer that is publicly disclosed (other than by Parent or any of its Subsidiaries) prior to the eleventh (11th) Business Day after the commencement of such tender or exchange offer pursuant to Rule 14d-2 under the 1934 Act or (B) recommend that the stockholders of the Company tender their shares of Company Stock in such tender offer or exchange offer; (iv) fail to include the Company Board Recommendation in the Company Proxy Statement in connection with the Company Stockholder Meeting; or (v) approve, adopt, recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal (any action described in Sections 6.04(d)(i) through 6.04(d)(v) being referred to as an “Adverse Recommendation Change”). (e) Notwithstanding anything to the contrary set forth in this Agreement but subject to Section 6.04(f), prior to the time, but not after, the Company Stockholder Approval is obtained, if an Acquisition Proposal has been made after the execution of this Agreement:, the Board of Directors of the Company may make an Adverse Recommendation Change in response to such Acquisition Proposal or terminate this Agreement pursuant to Section 10.01 if, and only if, (i) such Acquisition Proposal did not result from a material breach by the Company, any of its Subsidiaries or its or their respective Representatives of this Section 6.04; and (ii) the Board of Directors of the Company determines in good faith after consultation with its outside legal counsel and with its financial advisor that such Acquisition Proposal constitutes a Superior Proposal. (f) Prior to making any Adverse Recommendation Change in connection with an Acquisition Proposal and prior to terminating this Agreement pursuant to Section 10.01 (to the extent permitted under Section 6.04), the Company shall deliver to Parent a written notice (a “Superior Proposal Notice”) stating that the Board of Directors of the Company intends to take such action pursuant to Section 6.04 and, if applicable, intends to cause the Company to enter into an Alternative Acquisition Agreement, a copy of the proposed form of which shall be delivered with such notice, together with copies of any documents setting forth the Acquisition Proposal (which notice or intent shall not be an Adverse Recommendation Change or a violation of Section 6.04(d) or any other provision of this Section 6.04). During the three (3) Business Day period commencing on the first Business Day following the date of Parent’s receipt of such Superior Proposal Notice (the “Negotiation Period”), the Company shall make its Representatives reasonably available for the purpose of engaging in negotiations with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal. Any written proposal made by Parent to amend this Agreement during the Negotiation Period shall be considered by the Board of Directors of the Company in good faith. Each time the financial or other material terms of such Acquisition Proposal are changed, the Company shall be required to deliver to Parent a new Superior Proposal Notice (including as attachments thereto a copy of the new Alternative Acquisition Agreement relating to such amended Acquisition Proposal and copies of any related documents), and the Negotiation Period shall be extended by an additional three (3) Business Days from the date of Parent’s receipt of such new Superior Proposal Notice. (g) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Company Stockholder Approval is obtained, the Board of Directors of the Company may make an Adverse Recommendation Change in response to an Intervening Event if, and only if, the Board of Directors of the Company determines in good faith after consultation with its outside legal counsel and with its financial advisor that a failure to make an Adverse Recommendation Change in response to such Intervening Event would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law; provided, however, that the Company shall deliver to Parent a written notice (the “Intervening Event Notice”) advising Parent of all available material information with respect to such Intervening Event and stating that the Board of Directors of the Company intends to take such action pursuant to this Section 6.04(g) (which notice or intent shall not be an Adverse Recommendation Change or a violation of Section 6.04(d) or any other provision of this Section 6.04). During the three (3) Business Day period commencing on the date of Parent’s receipt of the Intervening Event Notice (the “Intervening Negotiation Period”), the Company shall make its Representatives reasonably available for the purpose of engaging in negotiations with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement in order to enable the Board of Directors of the Company to proceed with the Company Board Recommendation. Any written proposal made by Parent to amend this Agreement during the Intervening Negotiation Period shall be considered by the Board of Directors of the Company in good faith. (h) Notwithstanding anything to the contrary set forth this Agreement, unless this Agreement is terminated pursuant to, and in accordance with, Section 10.01, (i) the obligation of the Company to establish a record date for, duly call, give notice of, and, subject to Section 6.02, convene and hold the Company Stockholder Meeting and to hold a vote of the Company’s stockholders on the adoption of this Agreement and the Merger at the Company Stockholder Meeting pursuant to Section 6.02 shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal (whether or not a Superior Proposal) or by an Adverse Recommendation Change, and (ii) in any case in which the Company makes an Adverse Recommendation Change pursuant to this Section 6.04, the Company shall nevertheless submit this Agreement to a vote of its stockholders at the Company Stockholder Meeting for the purpose of the approval of this Agreement. (i) Nothing contained in this Agreement 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 its stockholders in connection with the making or amendment of a tender offer or exchange offer) or from making any disclosure to its stockholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal which the Board of Directors of the Company (after consultation with outside counsel) determines in its good faith judgment that failure to make such disclosure would reasonably be expected to violate U.S. federal or state securities Law or other Applicable Law or its fiduciary obligations under Applicable Law; provided that the Board of Directors of the Company may not effect an Adverse Recommendation Change unless permitted to do so by this Section 6.04; provided, further, that notwithstanding anything herein to the contrary, any “stop, look and listen” disclosure in and of itself shall not be considered an Adverse Recommendation Change or (ii) contacting and engaging in discussions with any Person or group and their respective Representatives who has made an Acquisition Proposal solely for the purpose of clarifying such Acquisition Proposal and the terms thereof.

Appears in 2 contracts

Samples: Merger Agreement (Carmike Cinemas Inc), Merger Agreement (Amc Entertainment Inc)

No Solicitation; Other Offers. (a) From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 1011, neither the Company ~~and~~ nor any of its Subsidiaries ~~will not, and the Company will use its reasonable best efforts to cause~~ nor any of the officers, directors, employees, investment bankers, consultants or other agents ~~or representatives (collectively, "Agents")~~ of the Company and its Subsidiaries ~~not to~~will, 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~~Proposal or any inquiries with respect thereto, (ii) engage in discussions or negotiations with any Person concerning an Acquisition ~~Proposal,~~ Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the knowledge of the Company, is making or considering making, or who has made, ~~an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to~~ 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 the Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is ~~making,~~ making or considering making or who has made, an Acquisition Proposal. The Company shall ~~promptly~~ provide such notice orally and in writing and shall identify the Person making, and ~~all~~ the terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent ~~promptly~~ informed of the status and details (including, without limitation, amendments or proposed amendments) of any such Acquisition Proposal ~~(including amendments~~ or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposalrequest. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition ~~Proposal~~Proposal and, to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their Affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the ~~foregoing~~first sentence of Section 7.04(a), the Company ~~may prior~~ may, until the earliest to ~~receipt~~ occur of the ~~NGH Stockholder Approval~~ Offer Completion Date, a purchase of Company Stock pursuant to the Option, and the Company Stockholders Meeting (~~as defined in~~ such earliest date the ~~NGH Voting Agreement~~"Cutoff Date"), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of this Section ~~6.04(a)~~7.04, (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal ~~is likely~~ could reasonably be expected to result in a Superior Proposal and, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action ~~would~~ could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (~~except as to~~ including the standstill ~~provisions~~provisions unless the Company shall have amended the Confidentiality Agreement to modify the standstill provisions therein to be no more restrictive of Parent than such Person is restricted pursuant to such confidentiality agreement) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. The Company shall provide Parent any information regarding the Company or its Subsidiaries provided to any Person making an Acquisition Proposal which was not previously provided to Parent. (c) ~~The~~ Except as permitted in this Section 7.04(c), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, or take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of the Offer and the Merger or with the recommendation to stockholders referred to in Section 7.02 hereof, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the Cutoff Date, the Board of Directors of the Company shall be permitted not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, or to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section ~~6.02~~ 2.02 and/or Section 7.02 hereof, but only if (i) the Company has complied with the terms of this Section ~~6.04(a)~~7.04, (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action ~~would constitute a breach of~~ could reasonably be deemed to be inconsistent with its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. (d) For purposes of this Agreement:

Appears in 2 contracts

Samples: Merger Agreement (Gannett Co Inc /De/), Merger Agreement (Central Newspapers Inc)

Appears in 2 contracts

Samples: Merger Agreement (Sodexho Marriott Services Inc), Merger Agreement (Sodexho Alliance S A)

No Solicitation; Other Offers. (a) ~~From~~ During the period beginning on the date ~~hereof until the earlier of the Effective Time and the termination~~ 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 ~~Article 10~~Section 11.1, subject to Section 7.3(b), the Company ~~and its Subsidiaries will~~ shall not, and ~~the Company will~~ shall cause its Subsidiaries not to, and shall direct and use ~~its~~ all commercially reasonable ~~best~~ efforts to cause ~~the~~ its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or and other ~~agents~~ agents, advisors or representatives (collectively, ~~"Agents"~~“Representatives”) ~~of the Company and its Subsidiaries~~ not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) ~~engage~~ enter into, participate in or continue 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 cooperate with, or assist any Third Party with ~~any Person concerning~~ respect to an Acquisition ~~Proposal~~Proposal or in a manner which would or would reasonably be expected to or facilitate the making of any Acquisition Proposal by any Third Party, (iii) ~~disclose~~ 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, 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. Without limiting the foregoing, it is agreed that any violation of the restrictions on the Company set forth in this Section by any Representative of the Company or any of its Subsidiaries shall be a breach of this Section by the Company. The Company shall, and shall cause its Subsidiaries to, and shall instruct their respective Representatives to, cease immediately and terminate any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal and shall instruct 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 shall advise Parent of any Third Party who does not comply with 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 similar statute inapplicable to any Acquisition Proposal. (b) Notwithstanding Section 7.3(a), at any time prior to the Acceptance Time, the Board of Directors, directly or indirectly through advisors, agents or other intermediaries, may, subject to 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 Company’s compliance with Section 7.3(a), has made after the date of this Agreement a Superior Proposal or an unsolicited bona fide Acquisition Proposal that the Board of Directors determines in good faith (after considering the advice of a financial advisor of nationally recognized reputation and outside legal counsel) could reasonably be expected to lead to a Superior Proposal, (ii) thereafter furnish to such Third Party nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, the Company may prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality ~~Agreement~~ Agreement, provided that all such information (~~except as~~ to the ~~standstill provisions~~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 (iviii) make an Adverse Recommendation Change, but in each case referred to in the ~~Company shall have delivered~~ foregoing clauses (i) through (iii) only if the Board of Directors determines in good faith by a majority vote, after considering advice from outside legal counsel to ~~Parent prior written notice advising Parent~~ the Company, that ~~it intends~~ the failure to take such ~~action~~action would be inconsistent with its fiduciary duties under 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, 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. (c) The Board of Directors shall not take any of the ~~Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders~~ actions referred to in ~~Section 6.02 hereof, but only if~~ clauses (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, through (iii) ~~the Board~~ of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (ivSection 7.3(b) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action of the status and terms of any discussions and negotiations with the Third Party. In addition, the Company shall notify Parent promptly (but in no event later than 24 hours) after receipt by the Company (or any of its Representatives) 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 keep Parent fully informed, on a 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) ~~For purposes~~ As used in this Agreement, “Superior Proposal” means any bona fide, unsolicited written Acquisition Proposal for at least a majority of the 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 proposal by Parent to amend the terms of this ~~Agreement:~~Agreement taking into account all the terms and conditions of such proposal and this Agreement (including the expected timing and likelihood of consummation, taking into account any governmental and other approval requirements), and (ii) that is reasonably capable of being completed on the terms proposed, taking into account the identity of the person making the proposal, any approval requirements and all other financial (including the financing terms of such proposal), legal and other aspects of such proposal.

Appears in 2 contracts

Samples: Merger Agreement (Ixia), Merger Agreement (Catapult Communications Corp)

No Solicitation; Other Offers. (a) ~~From~~ Subject to the remainder of this Section 6.04, upon execution of this Agreement, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) to, immediately cease or cause to be terminated any and all activities, discussions or negotiations with any Person with respect to any Acquisition Proposal. The Company shall promptly after the date ~~hereof~~ of this Agreement instruct each Third Party which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of the Company to promptly return or destroy all information, documents, and materials relating to the Acquisition Proposal or to the Company or its businesses, operations or affairs heretofore furnished by the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person. Subject to Section 6.04(b) and Section 6.04(c), from the execution of this Agreement until ~~the earlier of~~ the Effective Time ~~and~~ or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries shall, and the Company and its Subsidiaries ~~will not, and the Company will use~~ shall not authorize any of its ~~reasonable best efforts to cause the officers, directors, employees, investment bankers, consultants~~ or ~~other agents or representatives (collectively, "Agents") of the Company and its Subsidiaries not~~ their Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate, encourage or assist, or knowingly induce the making, submission ~~of any~~ or announcement of, an Acquisition Proposal, (ii) ~~engage~~ enter into or participate in any discussions or negotiations ~~with~~ with, furnish any ~~Person concerning an Acquisition Proposal, (iii) disclose any nonpublic~~ information relating to the Company or any of its Subsidiaries ~~to any Person who,~~ or afford access to the ~~knowledge~~ business, properties, assets, books, records or other information of the Company, is considering making, or has made, an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal. 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 Company or any of its Subsidiaries by to, otherwise knowingly cooperate in any ~~Person who,~~ way with any Third Party that is seeking to ~~the knowledge of the Company, is making~~make, or has made, or could reasonably be expected to make, an Acquisition Proposal~~. The~~ , (iii) approve, adopt, endorse, or recommend an Acquisition Proposal, (iv) fail to make, withhold, withdraw or amend, qualify or modify, in each case in a manner adverse to Parent, or publicly propose to withhold, withdraw or amend, modify or qualify, in each case in a manner adverse to Parent, the Company ~~shall promptly provide such notice orally and in writing and shall identify the Person making~~Board Recommendation, ~~and all terms and conditions of~~(v) propose publicly to approve, adopt, endorse or recommend any ~~such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such~~ Acquisition Proposal (~~including amendments or proposed amendments~~any of the foregoing in clause (iii), (iv) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall(v), and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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. Nothing contained in this Agreement shall prevent whether taken by the Board of Directors of the Company ~~from complying with Rule 14d-9~~ or ~~Rule 14e-2 under~~ any committee thereof being referred to as an “Adverse Recommendation Change”), (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument contemplating or otherwise relating to an Acquisition Proposal, or (vii) take any action to make the ~~1934 Act~~ provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation inapplicable to any transactions contemplated by an Acquisition Proposal; provided that no action expressly permitted by Section 8.08 with respect to any ~~Acquisition Proposal~~standstill provision in any agreement to which the Company or any of its Subsidiaries is a party shall constitute a breach of this Section 6.04. (b) Notwithstanding anything contained in Section 6.04(a) to the ~~foregoing~~contrary, if at any time prior to obtaining the Company ~~may prior to receipt of the NGH~~ Stockholder ~~Approval (as defined in the NGH Voting Agreement)~~Approval, ~~negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if~~ (i) the Company or any of its Representatives has ~~complied with the terms of Section 6.04(a), (ii)~~ received a bona fide written Acquisition Proposal that the Board of Directors of the Company ~~determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and~~reasonably believes, after consultation with its outside legal ~~counsel~~counsel and financial advisors, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdrawconstitutes, or ~~modify in a manner adverse~~ is reasonably likely to ~~Parent~~lead to, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (~~iii~~ii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take action with respect to such ~~action~~ Acquisition Proposal would ~~constitute a breach of~~ likely be inconsistent with its fiduciary duties under ~~applicable law~~ Applicable Law, (iii) such Acquisition Proposal was not the result of a breach of Section 6.04(a) and (iv) the Company provides to Parent in accordance with Section 6.04(d) the information required under Section 6.04(d) to be delivered by the Company to Parent, then, so long as the foregoing conditions in the immediately preceding clauses (i)-(iv) remain satisfied, the Company, directly or indirectly through its Representatives, may (A) engage in negotiations or discussions with such Third Party and its Representatives with respect to the Acquisition Proposal, and (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; provided that the Company shall concurrently provide to Parent any such information that is provided to any such Person which was not previously provided to or made available to Parent. (c) 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, (ii) making any legally required disclosure to the Company’s 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 recommend any Acquisition Proposal unless expressly permitted by Section 6.04(e)), (iii) contacting and engaging in discussions with any person or group and their respective Representatives who has made an Acquisition Proposal that was not the result of a breach of this Section 6.04 solely for the purpose of clarifying such Acquisition Proposal and the terms thereof or (iv) issuing a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) under the 1934 Act other than (A) a “stop, look and listen” communication limited solely to the type contemplated by Rule 14d-9(f) under the 1934 Act, (B) any express rejection of any applicable Acquisition Proposal or (C) any express reaffirmation of the Company Board Recommendation, shall be deemed to be an Adverse Recommendation Change. No change, withdrawal or modification of the Company Board Recommendation shall change the approval of the Board of Directors of the Company for purposes of causing any law (including Section 203 of Delaware Law) to be inapplicable to the Merger and the other transactions contemplated by this Agreement. (d) The Board of Directors of the Company shall not take any of the actions referred to in Section 6.04(b) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. In addition, prior to obtaining the Company Stockholder Approval, the Company shall notify Parent promptly (but in any event within twenty-four (24) hours) orally and in writing after the receipt by the Company (or any of its Representatives) of (i) any Acquisition Proposal, or (ii) 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 with respect to an actual or potential Acquisition Proposal. The Company shall also provide the identity of the Third Party making, submitting, inquiring about or expressing interest with respect to such Acquisition Proposal (except to the extent disclosure of such identity would breach a confidentiality obligation in effect prior to the execution of this Agreement) and (A) if it is in writing, a copy of such Acquisition Proposal and any related draft agreements and other written material from such Third Party (which, in each case, may be redacted, if necessary, solely to remove the identity of such Third Party in order to comply with a confidentiality obligation in effect prior to the execution of this Agreement) setting forth the terms and conditions of such Acquisition Proposal and (B) if oral, a summary thereof (including the material terms and conditions of the Acquisition Proposal). The Company shall keep Parent reasonably informed on a prompt and timely basis of the status and details of any such Acquisition Proposal and with respect to any change to the material terms of any such Acquisition Proposal within twenty-four (24) hours of any such change. The Company shall not, and shall cause its Subsidiaries not to, enter into any contract, arrangement, or commitment with any Third Party subsequent to the date of this Agreement, and neither the Company nor any of its Subsidiaries is or shall become party to any contract, arrangement, or commitment, in each case, that prohibits the Company from providing such information to Parent. (de) ~~For purposes~~ Notwithstanding anything contained in this Agreement to the contrary, prior to obtaining the Company Stockholder Approval, the Board of Directors of the Company may (i) (x) effect an Adverse Recommendation Change in respect of an Acquisition Proposal, or (y) enter into an agreement providing for a transaction that constitutes a Superior Proposal, if (A) the Company shall have received an Acquisition Proposal that was not the result of a breach of Section 6.04(a) that the Board of Directors of the Company determines, after consultation with its outside legal counsel and financial advisors, constitutes a Superior Proposal and the Company shall have otherwise complied in all material respects with the provisions of Section 6.04, (B) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take action with respect to such Superior Proposal would likely be inconsistent with its fiduciary duties under Applicable Law, (C) the Company has previously notified Parent in writing that it intends to take such action (a “Section 6.04 Notice”), (D) the Company shall have made its Representatives available to discuss in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this ~~Agreement:~~Agreement during the three (3) Business Day period following delivery by the Company to Parent of the Section 6.04 Notice delivered to Parent, (E) if Parent shall have delivered to the Company a written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Board of Directors of the Company shall have determined in good faith (after consultation with its outside legal counsel and financial advisors), after considering the terms of such offer by Parent, that the Superior Proposal giving rise to such Section 6.04 Notice continues to be a Superior Proposal, and (F) in the case of clause (y) above, the Company terminates this Agreement in accordance with Section 10.01 (d)(i), or (ii) effect an Adverse Recommendation Change other than in respect of an Acquisition Proposal if (A) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to effect such Adverse Recommendation Change would likely be inconsistent with its fiduciary duties under Applicable Law, (B) the Company has previously delivered to Parent a Section 6.04 Notice that it intends to take such action, (C) the Company shall have made its Representatives available to discuss in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of the Section 6.04 Notice delivered to Parent, and (D) if Parent shall have delivered to the Company a written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Board of Directors of the Company shall have determined in good faith, after consultation with outside legal counsel and after considering the terms of such offer by Parent, that the failure to effect such Adverse Recommendation Change would likely be inconsistent with its fiduciary duties under Applicable Law. If any Superior Proposal that is the subject of clause (i) of this Section 6.04(e) is revised, including any revision to price, then the Company shall deliver to Parent a new Section 6.04 Notice and again comply with the requirements of clause (i) of this Section 6.04(e) with respect to such revised Superior Proposal, on each occasion on which a revised Superior Proposal is submitted, provided that in connection with each new Section 6.04 Notice contemplated by this sentence, each reference to a three (3) Business Day period in the preceding sentence shall be deemed to be a reference to the longer of (x) a forty-eight (48) hour period or (y) a period ending on 11:59 p.m. (New York time) on the Business Day following delivery of the applicable Section 6.04

Appears in 2 contracts

Samples: Merger Agreement (Hanesbrands Inc.), Merger Agreement (Maidenform Brands, Inc.)

No Solicitation; Other Offers. (a) ~~From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the~~ The Company ~~and its Subsidiaries will not~~shall, and ~~the Company will use its reasonable best efforts to~~ shall cause the directors, officers~~, directors~~, employees, investment bankers, ~~consultants or~~ attorneys, accountants and other agents ~~or representatives (collectively, "Agents")~~ of the Company (such directors, officers, employees, investment bankers, attorneys, accountants and ~~its Subsidiaries not to~~other agents, ~~directly or indirectly~~collectively, (i“Representatives”) solicit, initiate or encourage the submission of any Acquisition Proposal, (ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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. ~~Nothing contained~~ The Company shall not, and shall cause its Representatives to not: (i) solicit, initiate or knowingly encourage or facilitate (including by way of furnishing information) the submission of any Acquisition Proposal or (ii) engage in ~~this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9~~ discussions or ~~Rule 14e-2 under the 1934 Act~~ negotiations or furnish to any Person any information with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. (b) The Company will notify Parent promptly (but in no case later than 48 hours after actual receipt by an officer or director of the Company) of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to an Acquisition Proposal and shall provide Parent the material terms and conditions of such Acquisition Proposal, request or inquiry, including the identity of the Person making such Acquisition Proposal, request or inquiry and a copy of all written materials provided by or on behalf of such Person in connection with the Acquisition Proposal, request or inquiry. The Company shall provide Parent with 48 hours prior notice (or such lesser prior notice as is provided to the members of its board of directors) of any meeting of its board of directors (or any committee thereof) at which its board of directors (or any committee thereof) is expected to consider any Acquisition Proposal or any such inquiry or to consider providing nonpublic information to any Person that 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 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 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 ~~foregoing~~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 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~~ unsolicited, bona fide written Acquisition Proposal ~~by such Person~~ from a third party after the execution of this Agreement if (i) such Acquisition Proposal did not result in a breach of this Section 6.04 and the Company has complied in all material respects with Section 6.04 and (ii) the board of directors of the Company determines in good faith (after consultation with outside counsel and its financial advisor) that such Acquisition Proposal is, or could reasonably be expected to result in a Superior Proposal; provided, however, (A) the Company receives from such third party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf in substantially the form of the Confidentiality Agreement, (B) contemporaneously with furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished) and (C) the Company shall not amend, or grant a waiver or release under, any standstill or similar agreement with respect to the any Company Common Stock. Nothing contained in this Agreement shall prevent the Company or its board of directors from complying with Rule 14d-9, Item 1012(a) of Regulation M-A and Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company’s stockholders required by applicable law or regulation. (c) Except as permitted in this Section 6.04(c), the board of directors (or any committee thereof) of the Company shall not (i) withdraw or modify (in a manner adverse to Parent) its recommendation to the Company’s stockholders referred to in Section 2.08 and Section 6.02(e) hereof (the “Company Recommendation”) or take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of the Merger, (ii) approve, recommend or take any position other than to recommend rejection (including modifying any recommendation of rejection) of, any Acquisition Proposal, (iii) cause or permit the Company to enter into (or publicly propose that the Company enter into) any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement or similar agreement with respect to any Acquisition Proposal or (iv) approve or recommend any Acquisition Proposal or any agreement, understanding or arrangement relating to any Acquisition Proposal, except for a confidentiality agreement, waiver or release referred to in Section 6.04(b) entered into in the circumstances referred to in Section 6.04(b). Notwithstanding the foregoing, prior to the adoption of this Agreement and the Merger by the Company Stockholders, the board of directors of the Company shall be permitted (i) not to recommend to the Company’s stockholders approval and adoption of this Agreement and the Merger, (ii) to withdraw or modify (in a manner adverse to Parent) the Company Recommendation (a “Change in the Company Recommendation”), (iii) approve or recommend any Superior Proposal or (iv) terminate this Agreement and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (A) the Company has complied with the terms of this Section ~~6.04(a)~~6.04, (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (iiB) the Company has received an unsolicited Acquisition Proposal which the ~~Board~~ board of ~~Directors~~ directors (or any committee thereof) determines in good ~~faith~~ faith, after consultation with its financial advisors, constitutes a Superior Proposal, (~~iii~~C) the ~~Board~~ board of ~~Directors~~ directors (or any committee thereof) of the Company determines in good faith, after consultation with outside legal ~~counsel~~counsel and its financial advisors, that the failure to take such action ~~would constitute a breach of~~ could reasonably be deemed to be inconsistent with its fiduciary duties under applicable ~~law and~~ law, (ivD) the Company ~~shall have~~ has delivered ~~to Parent~~ a prior written notice advising Parent that it intends to take such ~~action~~action and (E) Parent does not make, within three Business Days after the receipt of such notice, a proposal that the board of directors (or any committee thereof) of the Company determines in good faith, after consultation with its financial adviser, is no less favorable to the stockholders of the Company than such Superior Proposal or that results in the board of directors (or any committee thereof) of the Company no longer being required to make a Change in the Company Recommendation in order to comply with its fiduciary obligations under applicable law. The Company agrees that, 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 resulting from such Superior Proposal, the Company and its Representatives shall negotiate in good faith with Parent and its Representatives regarding any revisions to the terms of the transaction contemplated by this Agreement that are proposed by Parent. (d) For purposes of this Agreement:

Appears in 2 contracts

Samples: Merger Agreement (Crane & Co Inc), Merger Agreement (American Bank Note Holographics Inc)

Appears in 1 contract

Samples: Merger Agreement (Brunswick Technologies Inc)

No Solicitation; Other Offers. (a) From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 1011, neither the Company ~~and~~ nor any of its Subsidiaries ~~will not, and the Company will use its reasonable best efforts to cause~~ nor any of the officers, directors, employees, investment bankers, consultants or other agents ~~or representatives (collectively, "Agents")~~ of the Company and its Subsidiaries ~~not to~~will, 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~~Proposal or any inquiries with respect thereto, (ii) engage in discussions or negotiations with any Person concerning an Acquisition ~~Proposal,~~ Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the knowledge of the Company, is making or considering making, or who has made, ~~an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to~~ 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 the Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is ~~making,~~ making or considering making or who has made, an Acquisition Proposal. The Company shall ~~promptly~~ provide such notice orally and in writing and shall identify the Person making, and ~~all~~ the terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent ~~promptly~~ informed of the status and details (including, without limitation, amendments or proposed amendments) of any such Acquisition Proposal ~~(including amendments~~ or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposalrequest. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition ~~Proposal~~Proposal and, to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their Affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the ~~foregoing~~first sentence of Section 7.04(a), the Company ~~may prior~~ may, until the earliest to ~~receipt~~ occur of the ~~NGH Stockholder Approval~~ Offer Completion Date, a purchase of Company Stock pursuant to the Option, and the Company Stockholders Meeting (~~as defined in~~ such earliest date the ~~NGH Voting Agreement~~"CUTOFF DATE"), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of this Section ~~6.04(a)~~7.04, (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. (d) For purposes of this Agreement:the

Appears in 1 contract

Samples: Merger Agreement (Pulliam Myrta J)

No Solicitation; Other Offers. (a) ~~From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the~~ The Company ~~and its Subsidiaries will~~ shall not, and ~~the Company will~~ shall not permit any of its Subsidiaries to, and shall use its ~~reasonable~~ best efforts to ~~cause the~~ ensure that its officers, ~~directors,~~ directors or employees, or any investment bankers, consultants or other agents retained by it or ~~representatives (collectively, "Agents")~~ any of ~~the Company and~~ its Subsidiaries do not ~~to, directly or indirectly, (i)~~ solicit, ~~initiate or~~ initiate, encourage the submission of any Acquisition ~~Proposal, (ii)~~ Proposal or engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company~~ or ~~any of its Subsidiaries~~ furnish to any Person ~~who,~~ any information with respect to ~~the knowledge of the Company, is considering making, or has made,~~ an Acquisition Proposal or ~~(iv) take any other action to~~ knowingly facilitate any ~~inquiries~~ effort or ~~the making of any proposal that constitutes or that could reasonably be expected~~ attempt to ~~lead to~~ make an Acquisition Proposal. The Company will notify Parent ~~promptly (but in no event later than 24 hours) after~~ within 48 hours of receipt by the Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is ~~making,~~ making or considering making or who has made, an Acquisition Proposal. The Company shall ~~promptly~~ provide such notice orally and in writing ~~and shall identify~~ including the ~~Person making, and all~~ terms and conditions ~~of,~~ of any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition ~~Proposal~~Proposal and, to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the ~~1934~~ Exchange Act with respect to any Acquisition ~~Proposal~~Proposal or making any disclosure to the Company's shareholders if, in the good faith judgment of the majority of the disinterested members of the Board of Directors of the Company, failure to so disclose would be inconsistent with applicable law. (b) Notwithstanding the ~~foregoing~~first sentence of Section 6.05(a), 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 Acquisition Proposal by such Person if (i) the Company has complied with the terms of this Section ~~6.04(a)~~6.05, (ii) a majority of the Board of Directors of the Company reasonably determines in good faith that such Acquisition Proposal ~~is likely~~ could reasonably be expected to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action ~~would~~ could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, and (iii) such Person executes a confidentiality agreement ~~with terms no less favorable to~~ in substantially the ~~Company than those contained in~~ form of the Confidentiality Agreement (~~except as to~~ including the standstill provisions~~) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action~~). (c) Except as permitted by the second sentence of this Section 6.05(c), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, or take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of the Offer and the Merger, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement related to any Acquisition Proposal. The Board of Directors of the Company shall be permitted (i) not to recommend to its shareholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (ii) to withdraw, or modify in a manner adverse to Parent, its recommendation to its ~~stockholders~~ shareholders referred to in Section ~~6.02~~ 1.02 hereof, (iii) approve or recommend any Superior Proposal or (iv) terminate this Agreement and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (iw) the Company has complied with the terms of this Section ~~6.04(a)~~6.05, (iix) the Company has received an ~~unsolicited~~ Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (~~iii~~y) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action ~~would constitute a breach of~~ could reasonably be deemed to be inconsistent with its fiduciary duties under applicable ~~law~~ law, and (ivz) no such action is taken earlier than the ~~Company shall have delivered to Parent a prior~~ third full Business Day following Parent's receipt of written notice ~~advising Parent that it intends~~ of the intention of the Company's Board of Directors to ~~take such action~~do so. (d) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Block Drug Co Inc)

No Solicitation; Other Offers. (a) From the date hereof until the ~~earlier of the Effective Time and the~~ termination ~~of this Agreement in accordance with Article 10~~hereof, the Company ~~and its Subsidiaries~~ will not, and ~~the Company~~ will ~~use~~ cause its ~~reasonable best efforts to cause~~ Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or ~~representatives (collectively, "Agents")~~ 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, (ii) except as permitted in Section 7.4(b), engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal~~with, ~~(iii)~~ or disclose any nonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to, any Person ~~who,~~ who the Company has reason to ~~the knowledge of the Company, is~~ believe may be considering making, or has made, an Acquisition Proposal or ~~(iv) take any other action to facilitate~~ any inquiries or the making of any proposal that ~~constitutes~~ constitutes, or ~~that could~~ may reasonably be expected to lead ~~to an~~ 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 24 36 hours) after receipt by 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,~~ who the Company has reason to ~~the knowledge of the Company, is~~ believe may be considering making, or has made, an Acquisition Proposal. The Company shall ~~promptly~~ provide such notice orally and in writing and shall identify the Person making, and ~~all~~ the terms and conditions of, any such Acquisition ~~Proposal~~ Proposal, indication or request. The Company shall keep Parent ~~promptly informed of the status and details~~ fully informed, on a current basis, of any ~~such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant~~ material changes to ~~Section 6.04(b) and~~ the ~~Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal~~terms thereof. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition Proposal~~. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal~~. (b) Notwithstanding the foregoing, the Company may ~~prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement),~~ negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person ~~in response to an unsolicited Acquisition~~ who delivers a Superior Proposal ~~by such Person~~ if (i) the Company has complied with the terms of this Section ~~6.04(a)~~7.4, including, without limitation, the requirement in Section 7.4(a) that it notify Parent promptly after its receipt of any Acquisition Proposal, (ii) the Board of Directors of the Company determines in good faith ~~that such Acquisition Proposal is likely to result in~~ by a ~~Superior Proposal and~~majority vote, ~~after consultation with~~ on the basis of advice from its outside legal counsel, that ~~the failure to take such action would constitute a breach of~~ consistent with its fiduciary duties under applicable law, 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 (except as to the standstill provisions) and~~ Agreement, (iv) the Company shall have delivered to Parent four business days' prior written notice advising Parent that it intends to take such ~~action~~action and (v) the Offer shall not have closed. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its approval and recommendation to its ~~stockholders~~ shareholders referred to in ~~Section 6.02~~ Sections 2.2 and 7.2 hereof, but only if (i) the Company has complied with the terms of this Section ~~6.04(a)~~7.4, including, without limitation, the requirement in Section 7.4(a) that it notify Parent promptly after its receipt of any Acquisition Proposal, (ii) a Superior Proposal is pending at the ~~Company has received an unsolicited Acquisition Proposal which~~ time the Company's Board of Directors determines to take any such action, (iii) the Company's Board of Directors determines in good faith ~~constitutes~~ by a ~~Superior Proposal~~majority vote, ~~(iii)~~ on the ~~Board of Directors~~ basis of the ~~Company determines in good faith, after consultation with~~ advice of its outside legal counsel, that ~~the failure to take such action would constitute a breach of~~ consistent with its fiduciary duties under applicable ~~law~~ law, it must take such action and (iv) the Company shall have delivered to Parent a four business days' prior written notice advising Parent that it intends to take such action~~. (d)~~ . 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

Samples: Merger Agreement (Compagnie De Saint Gobain)

No Solicitation; Other Offers. (a) From the date hereof until the ~~earlier of the Effective Time and the~~ termination ~~of this Agreement in accordance with Article 10~~hereof, the Company ~~and its Subsidiaries~~ will not, and ~~the Company~~ will ~~use~~ cause its ~~reasonable best efforts to cause~~ Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or ~~representatives (collectively, "Agents")~~ 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, (ii) engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal~~with, ~~(iii)~~ or disclose any nonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to, any Person ~~who,~~ who the Company has reason to ~~the knowledge of the Company, is~~ believe may be considering making, or has made, an Acquisition ~~Proposal~~ Proposal, or (iviii) ~~take~~ grant any ~~other action~~ waiver or release under any standstill or similar agreement with respect to ~~facilitate~~ any ~~inquiries or~~ class of equity securities of the ~~making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal~~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 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,~~ who the Company has reason to ~~the knowledge of the Company, is~~ believe may be considering making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, the Company may ~~prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement),~~ negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person ~~in response to an unsolicited~~ who delivers a written Acquisition Proposal ~~by such Person~~ if (i) two (2) business days prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company ~~has complied with~~ provides written notice to Parent to the ~~terms of Section 6.04(a)~~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 determines in good faith ~~that such Acquisition Proposal is likely to result in~~ by a ~~Superior Proposal and~~majority vote, ~~after consultation with~~ on the basis of advice from its outside legal counsel, ~~that the failure to take such action would constitute a breach of~~ that, consistent with its fiduciary duties under applicable law, it must take such action, (~~iii~~iv) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement, (v) such Acquisition Proposal is reasonably expected to be all cash and not explicitly subject to any financing contingency, and that in the event that such Acquisition Proposal is in the form of a tender offer or exchange offer, such tender offer 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. 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 Persons considering providing financing to Parent in connection with the Transactions, 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 (x) permit the Company to terminate this Agreement (except as specifically provided in Section 11.01), (y) permit the Company to ~~the standstill provisions) and~~ enter into any written agreement with respect to an Acquisition Proposal for so long as this Agreement remains in effect (~~iv)~~ it being agreed that for so long as this Agreement remains in effect, the Company shall ~~have delivered to Parent prior~~ not enter into any written ~~notice advising Parent~~ agreement with any Person that ~~it intends to take such action~~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 to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in ~~Section 6.02~~ Sections 2.01 and 7.02 hereof, but only if (i) the Company has complied with the terms of this Section ~~6.04(a~~7.04, including, without limitation, the requirements in clauses (i), (ii) and (iv) of Section 7.04(b) and the ~~Company has received an unsolicited~~ 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 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 faith ~~constitutes~~ by a ~~Superior Proposal~~majority vote, ~~(iii)~~ on the ~~Board of Directors~~ basis of the ~~Company determines in good faith, after consultation with~~ advice of its outside legal counsel, ~~that the failure to take such action would constitute a breach of~~ that, consistent with its fiduciary duties under applicable ~~law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that~~ law, it ~~intends to~~ must take such action. ~~(d) For purposes of this Agreement:~~

Appears in 1 contract

Samples: Merger Agreement (Inamed Corp)

No Solicitation; Other Offers. (a) ~~From~~ After the date hereof ~~until~~ and prior to the Closing Date or earlier ~~of the Effective Time and the~~ termination of this Agreement in accordance with ~~Article 10~~its terms, the ~~Company and its Subsidiaries~~ Sellers will not, and the ~~Company~~ Sellers will ~~use its reasonable best efforts to~~ cause their Subsidiaries and Affiliates and the officers, directors, employees, investment bankers, attorneys, consultants or and other agents ~~or representatives (collectively, "Agents")~~ and advisors of the ~~Company~~ Sellers and ~~its~~ 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,~~ Proposal or (ii) encourage or engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal~~with, ~~(iii)~~ or disclose any nonpublic information relating to the ~~Company~~ Targeted Businesses or ~~any~~ afford access to the properties, books or records of ~~its Subsidiaries to~~ the Targeted Businesses or of the Sellers regarding the Target Assets to, any Person ~~who~~(other than to Purchaser, ~~to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or (iv~~its representatives and advisors) ~~take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to~~ concerning an Acquisition Proposal. The ~~Company~~ Sellers will notify ~~Parent promptly (~~Purchaser as soon as reasonably practicable, but in ~~no event later than 24 hours) after receipt~~ any event, within forty-eight hours of any Acquisition Proposal received by the ~~Company~~ 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 any request for nonpublic information relating to the ~~Company~~ Targeted Businesses or for access to the properties, books or records of the Sellers or any of ~~its~~ their Subsidiaries by any Person ~~who, to the knowledge of the Company,~~ who is considering making, or has made, an Acquisition Proposal. The ~~Company~~ Sellers shall ~~promptly~~ provide such notice orally and in writing and shall identify the Person making, and ~~all~~ the terms and conditions of, any such Acquisition ~~Proposal~~ Proposal, indication or ~~request~~request and shall also include, as and when received, copies of any written offer, proposal or materials received. The ~~Company~~ Sellers shall keep ~~Parent promptly informed~~ Purchaser fully informed, on a current basis, of the status and details of any such Acquisition ~~Proposal (including amendments~~ Proposal, indication or ~~proposed amendments) or request~~ request. Upon execution of this Agreement, the Sellers shall and shall cause their Subsidiaries, and their respective officers, directors, Affiliates, representatives, consultants and advisors to immediately cease any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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~~ execution of this Agreement with respect to any Acquisition ~~Proposal. Nothing contained~~ Proposal and shall request (or if any of them has contractual rights to do so, demand) the return of all documents, analyses, financial statements, projections and other data and information previously furnished to others in ~~this Agreement shall prevent the Board of Directors of the Company from complying~~ connection with ~~Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to~~ any potential Acquisition Proposal. (b) Notwithstanding the foregoing, the ~~Company~~ Sellers may ~~prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise~~ engage in ~~substantive~~ discussions or negotiations with, and furnish nonpublic information or access to, any Person in response to an unsolicited Acquisition Proposal by such Person received without violation of this Agreement if (i) the ~~Company has~~ Sellers have complied with the terms of Section ~~6.04(a~~5.2(a), (ii) the Board of Directors of Sylvan or the ~~Company~~ Special Committee of Sylvan, as appropriate, determines in good faith that such Acquisition Proposal ~~is likely to~~ would result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be deemed to constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the ~~Company~~ Sellers than those contained in the Confidentiality Agreement ~~(except as to the standstill provisions)~~ and (iv) the ~~Company~~ Sellers shall have delivered to ~~Parent~~ Purchaser three Business Days’ prior written notice (the “First Notice”) advising ~~Parent~~ Purchaser that it intends to take such action. Upon receipt of the First Notice, Purchaser will notify the Sellers as soon as reasonably practicable, but in any event, within three Business Days after receipt of such notice, of Table of Contents the Termination Fee (the “Termination Fee Notice”) it will elect in the event of termination of this Agreement on the basis of such Acquisition Proposal pursuant to Section 7.3(a)(x) or 7.3(a)(y). If Purchaser elects the Termination Fee pursuant to Section 7.3(a)(y), it shall not be required to make the election provided in subparts (a) and (b) of that section at the time it provides the Termination Fee Notice, but shall be required to make such election no later than five Business Days after the Purchaser’s receipt of the notice specified in Section 7.1(c)(iii)(C). The Sellers shall deliver no more than one First Notice with respect to a Person that has provided an Acquisition Proposal unless such Person provides a new Acquisition Proposal following a matching offer by Purchaser pursuant to Section 7.1(c)(ii)(D). (c) ~~The~~ Nothing contained in this Section 5.2 or any other provision of this Agreement shall prohibit the Sellers or any director, officer, agent or employee of the Sellers from (i) taking and disclosing to Sylvan’s shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 and 14e-2 promulgated under the Exchange Act or (ii) making such disclosure to Sylvan’s shareholders as, in the good faith judgment of Sylvan’s Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside ~~legal~~ counsel, ~~that the failure to take such action would constitute a breach of its fiduciary duties~~ is required under applicable ~~law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action~~law. ~~(d) For purposes of this Agreement:~~

Appears in 1 contract

Samples: Asset Purchase Agreement (Educate Inc)

No Solicitation; Other Offers. (a) From the date hereof until the ~~earlier of the Effective Time and the~~ termination ~~of this Agreement in accordance with Article 10~~hereof, the Company ~~and its Subsidiaries~~ will not, and ~~the Company~~ will ~~use~~ cause its ~~reasonable best efforts to cause~~ Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or ~~representatives (collectively, "Agents")~~ 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, (ii) engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal~~with, ~~(iii)~~ or disclose any nonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to, any Person ~~who,~~ who the Company has reason to ~~the knowledge of the Company, is~~ believe may be considering making, or has made, an Acquisition ~~Proposal~~ Proposal, or (iviii) ~~take~~ grant any ~~other action~~ waiver or release under any standstill or similar agreement with respect to ~~facilitate~~ any ~~inquiries or~~ class of equity securities of the ~~making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal~~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,~~ who the Company has reason to ~~the knowledge of the Company, is~~ believe may be considering making, or has made, an Acquisition Proposal. The Company shall ~~promptly~~ provide such notice orally and in writing and shall identify the Person making, and ~~all~~ the terms and conditions of, any such Acquisition ~~Proposal~~ Proposal, indication or request. The Company shall keep Parent ~~promptly informed~~ fully informed, on a current basis, of any material changes in the status ~~and~~ or details of any such Acquisition ~~Proposal (including amendments~~ Proposal, indication or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposalrequest. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, the Company may ~~prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement),~~ negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person ~~in response to~~ who delivers an ~~unsolicited~~ Acquisition Proposal ~~by such Person~~ if (i) the Company has complied with the terms of this Section ~~6.04(a)~~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 determines in good faith ~~that such Acquisition Proposal is likely to result in~~ by a ~~Superior Proposal and~~majority vote, ~~after consultation with~~ on the basis of advice from its outside legal counsel, ~~that the failure to take such action would constitute a breach of~~ that, consistent with its fiduciary duties under applicable law, 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 (except as to the standstill provisions)~~ Agreement, and (iv) the Company shall have delivered to Parent two business days' prior written notice advising Parent that it intends to take such action. (c) 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 6.02~~ Sections 2.02 and 7.02 hereof, but only if (i) the Company has complied with the terms of this Section ~~6.04(a)~~7.04, including, without limitation, the requirement in Section 7.04(a) that it notify Parent promptly after its receipt of any Acquisition Proposal, (ii) a Superior Proposal is pending at the ~~Company has received an unsolicited Acquisition Proposal which~~ time the Board of Directors determines to take any such action, (iii) the Board of Directors determines in good faith ~~constitutes~~ by a ~~Superior Proposal~~majority vote, ~~(iii)~~ on the ~~Board of Directors~~ basis of the ~~Company determines in good faith, after consultation with~~ advice of its outside legal counsel, ~~that the failure to take such action would constitute a breach of~~ that, consistent with its fiduciary duties under applicable ~~law~~ law, it must take such action, and (iv) the Company shall have delivered to Parent a two business days' prior written notice advising Parent that it intends to take such action~~. (d)~~ . 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

Samples: Merger Agreement (Gn Great Nordic LTD)

No Solicitation; Other Offers. ~~(a) From the date hereof until the earlier~~ Parent agrees that neither it nor any of its Subsidiaries nor any of the ~~Effective Time~~ officers and directors of it or its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ employees, agents and representatives (including any investment banker, attorney, accountant or other advisor retained by it or any of its Subsidiaries for services provided in connection with the ~~termination of~~ transactions contemplated by this Agreement ~~in accordance with Article 10,~~ whether as of the ~~Company and its Subsidiaries will not, and the Company will use its reasonable best efforts to cause the officers, directors, employees, investment bankers, consultants~~ Original Merger Agreement Date or ~~other agents or representatives~~ any time thereafter) (collectively, ~~"Agents"~~“Representatives”) not to, directly or indirectly, initiate, solicit or knowingly encourage or facilitate any Acquisition Proposal. Parent further agrees that neither it nor any of its Subsidiaries nor any of the ~~Company~~ officers and directors of it or its Subsidiaries shall, and that it shall cause its and its ~~Subsidiaries~~ Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, (i) ~~solicit~~engage in any negotiations concerning, ~~initiate~~ or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise knowingly encourage ~~the submission of~~ or facilitate any effort or attempt to make or implement an Acquisition Proposal, (ii) ~~engage in discussions~~ amend or ~~negotiations~~ grant any waiver or release under any standstill or similar agreement with respect to any ~~Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company~~ class of equity securities of Parent or any of its Subsidiaries to (unless the Company’s obligations under the standstill provisions contained in the Confidentiality Agreement dated May 27, 2005 between the Company and Parent (the “Confidentiality Agreement”) are simultaneously waived), (iii) approve any ~~Person who~~transaction under, ~~to the knowledge~~ or any Third Party becoming an “interested stockholder” under, Section 203 of the ~~Company~~Delaware Law, ~~is considering making~~(iv) amend or grant any waiver or release or approve any transaction or redeem any Parent Rights under the Parent Rights Agreement, ~~or has made,~~ (v) make any Adverse Parent Recommendation Change in connection with an Acquisition Proposal or (ivvi) ~~take~~ enter into any ~~other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead~~ definitive agreement with respect to an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who; provided, ~~to the knowledge of the Company~~however, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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. Nothing that nothing contained in this Agreement shall prevent Parent or its Board of Directors from (1) complying with its disclosure obligations under Sections 14d-9 and 14e-2(a) of the 1934 Act with regard to an Acquisition Proposal; provided, however, that if such disclosure constitutes an Adverse Parent Recommendation Change, the Company shall have the right to terminate this Agreement as set forth in Section 10.01(c)(i) of this Agreement; and (2) at any time prior to, 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 if the Board of Directors of Parent receives from the ~~Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing~~Person so requesting such information, ~~the Company may~~ prior to ~~receipt~~ the provision of ~~the NGH Stockholder Approval (as defined in the NGH Voting Agreement)~~any such information, ~~negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to~~ an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a executed confidentiality agreement ~~with~~ on terms no less favorable to ~~the Company~~ Parent than those contained in the Confidentiality Agreement (~~except~~ provided that, such executed confidentiality agreement may contain less favorable standstill provisions as to long as the Company’s obligations under the standstill ~~provisions~~provisions contained in the Confidentiality Agreement are simultaneously waived); (B) ~~and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw,~~ engaging in any negotiations or ~~modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company~~ discussions with any Person who has ~~complied with the terms of Section 6.04(a), (ii) the Company has received~~ made an unsolicited bona fide written Acquisition Proposal ~~which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii)~~ if the Board of Directors of Parent receives from such Person, prior thereto, an executed confidentiality agreement as described in the ~~Company~~ 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,~~ faith after consultation with outside legal ~~counsel,~~ counsel that ~~the failure to take~~ 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 ~~constitute~~ result in a ~~breach~~ transaction more favorable to Parent’s stockholders from a financial point of ~~its fiduciary duties under applicable law~~ view than the transactions contemplated by this Agreement taking into account any change proposed by the Company; and (ivz) in the case of clause (C), the Company shall have ~~delivered to Parent a prior~~ had written notice ~~advising~~ of Parent’s intention to take the action 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”). Parent grees that it ~~intends~~ will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted prior to the Original Merger Agreement Date with respect to any Acquisition Proposal, including any discussions or negotiations with respect to the possible sale of the Flextech Group. Parent agrees that it will take ~~such action. (d) For purposes~~ the necessary steps to promptly inform the individuals or entities referred to in the first sentence of this ~~Agreement:~~Section 6.08 of the obligations undertaken in this Section 6.08. Parent agrees that it will notify the Company promptly, but in any event within 48 hours if any proposals or offers referred to in this Section 6.08 are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, it or any of its Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep the Company 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 the consideration or making of any Acquisition Proposal (including with respect to the possible sale of the Flextech Group) and Parent shall 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 to 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).

Appears in 1 contract

Samples: Agreement and Plan of Merger (NTL Inc)

No Solicitation; Other Offers. (a) ~~From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10~~Except as required under applicable Law, the Company ~~and its Subsidiaries will~~ shall not, and ~~the Company will use~~ shall not authorize or permit any of its ~~reasonable best efforts to cause the~~ Subsidiaries, officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or ~~representatives (collectively, "Agents") of the Company and 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, (ii) ~~engage~~ enter into or participate in any discussions or negotiations ~~with~~ with, furnish any ~~Person concerning an Acquisition Proposal, (iii) disclose any nonpublic~~ confidential information relating to the Company or any of its Subsidiaries ~~to any Person who,~~ or afford access to the ~~knowledge~~ business, properties, assets, books or records of the ~~Company~~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 ~~considering making~~seeking to make, or has made, an Acquisition ~~Proposal~~ Proposal, or (iviii) ~~take~~ grant any ~~other action~~ waiver or release under any standstill or similar agreement to ~~facilitate~~ which the Company or any ~~inquiries or the making~~ of ~~any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal.~~ its Subsidiaries is a party. (b) The Company ~~will~~ shall, and shall cause its Subsidiaries, officers, directors, employees, investment bankers, attorneys and other agents and advisors to, notify ~~Parent~~ ABI promptly (but in no event later than 24 hours) after receipt by ~~the Company~~ any of such Persons of any Acquisition Proposal, any indication by a third party to any of such Persons that it is considering making an Acquisition Proposal or any request for ~~nonpublic~~ confidential 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 ~~Person who, to~~ third party that the ~~knowledge of the Company, is~~ Company reasonably believes may be considering making, or has made, an Acquisition Proposal. The Company ~~shall promptly provide such notice orally and in writing~~ shall, and shall cause all such other Persons to identify the ~~Person~~ third party making, and ~~all~~ the terms and conditions of, any such Acquisition ~~Proposal~~ Proposal, indication or request. The Company shall, and shall cause all such other Persons to, keep ~~Parent promptly informed~~ ABI fully informed, on a current basis, of the status and details of any such Acquisition ~~Proposal (including amendments~~ Proposal, indication or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposalrequest. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause ~~its Subsidiaries and the Agents of the Company and its Subsidiaries~~ 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. Nothing contained~~ Proposal and use its commercially reasonable best efforts to cause any such Party (or its agents or advisors) in ~~this Agreement shall prevent~~ possession of confidential information about the ~~Board~~ Company or any of ~~Directors~~ its Subsidiaries that was furnished by or on behalf of the Company ~~from complying with Rule 14d-9~~ to return or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, the Company may prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by destroy all such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such actioninformation. (c) ~~The Board~~ For the avoidance of ~~Directors of the Company~~ doubt, nothing in this Agreement shall ~~be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if~~ restrict (i) ~~the~~ any holder of Company ~~has complied with the terms of Section 6.04(a)~~Shares from considering, ~~(ii) the Company has received an unsolicited~~ negotiating or accepting any Acquisition ~~Proposal which the Board of Directors determines in good faith constitutes a Superior~~ Proposal, ~~(iii)~~ and nothing herein shall be construed to require any holder of Company Shares to participate or sell Company Shares in the ~~Board of Directors of~~ Offer or through the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. (d) For purposes of this Agreement:Trust,

Appears in 1 contract

Samples: Transaction Agreement

No Solicitation; Other Offers. ~~(a) From the date hereof until the earlier~~ Parent agrees that neither it nor any of its Subsidiaries nor any of the ~~Effective Time~~ officers and directors of it or its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ employees, agents and representatives (including any investment banker, attorney, accountant or other advisor retained by it or any of its Subsidiaries for services provided in connection with the ~~termination of~~ transactions contemplated by this Agreement ~~in accordance with Article 10,~~ whether as of the ~~Company and its Subsidiaries will not, and the Company will use its reasonable best efforts to cause the officers, directors, employees, investment bankers, consultants~~ Original Merger Agreement Date or ~~other agents or representatives~~ any time thereafter) (collectively, ~~"Agents"~~“Representatives”) not to, directly or indirectly, initiate, solicit or knowingly encourage or facilitate any Acquisition Proposal. Parent further agrees that neither it nor any of its Subsidiaries nor any of the ~~Company~~ officers and directors of it or its Subsidiaries shall, and that it shall cause its and its ~~Subsidiaries~~ Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, (i) ~~solicit~~engage in any negotiations concerning, ~~initiate~~ or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise knowingly encourage ~~the submission of~~ or facilitate any effort or attempt to make or implement an Acquisition Proposal, (ii) ~~engage in discussions~~ amend or ~~negotiations~~ grant any waiver or release under any standstill or similar agreement with respect to any ~~Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company~~ class of equity securities of Parent or any of its Subsidiaries to (unless the Company’s obligations under the standstill provisions contained in the Confidentiality Agreement dated May 27, 2005 between the Company and Parent (the “Confidentiality Agreement”) are simultaneously waived), (iii) approve any ~~Person who~~transaction under, ~~to the knowledge~~ or any Third Party becoming an “interested stockholder” under, Section 203 of the ~~Company~~Delaware Law, ~~is considering making~~(iv) amend or grant any waiver or release or approve any transaction or redeem any Parent Rights under the Parent Rights Agreement, ~~or has made,~~ (v) make any Adverse Parent Recommendation Change in connection with an Acquisition Proposal or (ivvi) ~~take~~ enter into any ~~other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead~~ definitive agreement with respect to an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who; provided, ~~to the knowledge of the Company~~however, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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. Nothing that nothing contained in this Agreement shall prevent Parent or its Board of Directors from (1) complying with its disclosure obligations under Sections 14d-9 and 14e-2(a) of the 1934 Act with regard to an Acquisition Proposal; provided, however, that if such disclosure constitutes an Adverse Parent Recommendation Change, the Company shall have the right to terminate this Agreement as set forth in Section 10.01(c)(i) of this Agreement; and (2) at any time prior to, 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 if the Board of Directors of Parent receives from the ~~Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing~~Person so requesting such information, ~~the Company may~~ prior to ~~receipt~~ the provision of ~~the NGH Stockholder Approval (as defined in the NGH Voting Agreement)~~any such information, ~~negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to~~ an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a executed confidentiality agreement ~~with~~ on terms no less favorable to ~~the Company~~ Parent than those contained in the Confidentiality Agreement (~~except~~ provided that, such executed confidentiality agreement may contain less favorable standstill provisions as to long as the Company’s obligations under the standstill ~~provisions~~provisions contained in the Confidentiality Agreement are simultaneously waived); (B) ~~and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw,~~ engaging in any negotiations or ~~modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company~~ discussions with any Person who has ~~complied with the terms of Section 6.04(a), (ii) the Company has received~~ made an unsolicited bona fide written Acquisition Proposal ~~which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii)~~ if the Board of Directors of Parent receives from such Person, prior thereto, an executed confidentiality agreement as described in the ~~Company~~ 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,~~ faith after consultation with outside legal ~~counsel,~~ counsel that ~~the failure to take~~ 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 ~~constitute~~ result in a ~~breach~~ transaction more favorable to Parent’s stockholders from a financial point of ~~its fiduciary duties under applicable law~~ view than the transactions contemplated by this Agreement taking into account any change proposed by the Company; and (ivz) in the case of clause (C), the Company shall have ~~delivered to Parent a prior~~ had written notice ~~advising~~ of Parent’s intention to take the action 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”). Parent agrees that it ~~intends~~ will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted prior to the Original Merger Agreement Date with respect to any Acquisition Proposal, including any discussions or negotiations with respect to the possible sale of the Flextech Group. Parent agrees that it will take ~~such action. (d) For purposes~~ the necessary steps to promptly inform the individuals or entities referred to in the first sentence of this ~~Agreement:~~Section 6.08 of the obligations undertaken in this Section 6.08. Parent agrees that it will notify the Company promptly, but in any event within 48 hours if any proposals or offers referred to in this Section 6.08 are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, it or any of its Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep the Company 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 the consideration or making of any Acquisition Proposal (including with respect to the possible sale of the Flextech Group) and Parent shall 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 to 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).

Appears in 1 contract

Samples: Agreement and Plan of Merger (Telewest Global Inc)

No Solicitation; Other Offers. (a) ~~From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10,~~ Neither the Company ~~and~~ nor any of its Subsidiaries ~~will not~~shall, ~~and~~ nor shall the Company ~~will use~~ or any of its ~~reasonable best efforts to cause the officers~~Subsidiaries authorize or permit any of its or their Officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or ~~representatives (collectively, "Agents") of the Company and 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 or any inquiry with respect thereto, (ii) ~~engage~~ enter into or participate in any discussions or negotiations ~~with~~ with, furnish any ~~Person concerning~~ 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 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) ~~disclose~~ approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal, (v) fail to make, withdraw, or modify in a manner adverse to Parent its recommendation to its stockholders referred to in Sections 2.02 and/or 7.02 hereof, or (vi) 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. Nothing contained in this Section 7.04 shall prohibit the Company (x) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the 1934 Act with regard to an Acquisition Proposal (provided that the Board of Directors of the Company shall not withdraw or modify in an adverse manner its approval or recommendation referred to in Sections 2.02 and/or 7.02 hereof except as set forth below) or (y) in the event that a Superior Proposal is made and the Board of Directors of the Company determines in good faith, after consultation with outside counsel, that it would otherwise constitute a breach of its fiduciary duty to stockholders, from withdrawing or modifying its recommendation referred to in Sections 2.02 and/or 7.02 hereof prior to the purchase of Shares pursuant to the Offer, so long as the Company continues to comply with all other provisions of this Agreement and so long as all the conditions to the Company's rights to terminate this Agreement in accordance with Section 11.01(b)(iii) have been satisfied (including the expiration of the 72-hour period described therein and the payment of all amounts required pursuant to Section 12.04). (b) Notwithstanding the foregoing, the Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party that, without prior solicitation by or negotiation with the Company, has made a Superior Proposal, (ii) furnish to such Third Party nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, the Company may prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (~~except as~~ a copy of which shall be provided for informational purposes only to Parent), (iii) following receipt of such Superior Proposal, take and disclose to its stockholders a position contemplated by Rule 14e-2(a) under the ~~standstill provisions) and~~ 1934 Act or otherwise make disclosure to them, (iv) following receipt of such Superior Proposal, fail to make, withdraw, or modify in a manner adverse to Parent its recommendation to its stockholders referred to in Sections 2.02 and/or 7.02 hereof and/or (v) take any non-appealable, final action ordered to be taken by the Company ~~shall have delivered~~ by any court of competent jurisdiction, but in each case referred to ~~Parent prior written notice advising Parent~~ in the foregoing clauses (i) through (iv) only if the Board of Directors of the Company determines in good faith by a majority vote, that it ~~intends to~~ must take such ~~action~~action to comply with its fiduciary duties under applicable law. (c) 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~~ not take any of the actions referred to in ~~Section 6.02 hereof, but only if~~ clauses (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and through (iv) of the preceding subsection unless the Company shall have delivered to Parent a 72 hours prior written notice advising Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, the Company shall 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 or 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 may be considering making, or has made, 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 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 shall, and shall cause its Subsidiaries and 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 hereof with respect to any Acquisition Proposal and shall use its reasonable best efforts to cause any such 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. ~~(d) For purposes of this Agreement:~~

Appears in 1 contract

Samples: Merger Agreement (Novell Inc)

No Solicitation; Other Offers. (a) ~~From~~ Nothing contained in this Section 4.7(a) shall prevent the ~~date hereof until~~ 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 ~~earlier of the Effective Time and the termination~~ Merger (any such inquiry or proposal being referred to herein as an "Acquisition Proposal") not solicited in violation of this ~~Agreement~~ Agreement, provided the Board of Directors of Company or the Special Committee, as the case may be, determines in ~~accordance~~ 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 ~~Article 10,~~ Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer. (b) Company shall immediately notify Rocket and its Subsidiaries will not, and the Company will use its reasonable best efforts to cause the officers, directors, employees, investment bankers, consultants or other agents or representatives (collectively, "Agents") of the Company and its Subsidiaries not to, directly or indirectly, (i) solicit, initiate or encourage the submission Acquiror after receipt of any Acquisition Proposal, ~~(ii) engage in discussions~~ or ~~negotiations with~~ any ~~Person concerning an~~ modification of or amendments to any Acquisition Proposal, ~~(iii) disclose~~ or any request for nonpublic information relating to ~~the~~ Company or any of its Subsidiaries 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 ~~who, to~~ or entity that informs the ~~knowledge~~ Board of Directors of Company or the ~~Company,~~ Special Committee or such Subsidiary that it is considering making, or has made, an Acquisition ~~Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition~~ Proposal. ~~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~~ Such notice to ~~the Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company~~ Rocket and Acquiror shall ~~promptly provide such notice~~ be made orally and in ~~writing~~ writing, and shall ~~identify~~ indicate whether Company is providing or intends to provide the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition ~~Proposal. The~~ Proposal with access to information concerning Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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. Nothing contained as provided in ~~this Agreement shall prevent~~ Section 4.7(c). (c) If the Board of Directors of Company or the ~~Company from complying with Rule 14d-9~~ Special Committee receives a request for material nonpublic information by a Person who makes, or ~~Rule 14e-2 under the 1934 Act with respect to any~~ indicates that it is considering making, an Acquisition Proposal. (b) Notwithstanding the foregoing, the Company may prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise engage in substantive discussions with, and ~~furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii)~~ the Board of Directors of or the ~~Company~~ Special Committee, as the case may be, determines in good faith ~~that such Acquisition Proposal is likely to result in a Superior Proposal and,~~ after consultation with outside ~~legal counsel~~counsel that it would be in the best interests of Company and its stockholders to provide such information, ~~that the failure to take such action would constitute a breach of its fiduciary duties under applicable law~~then, ~~(iii)~~ provided such Person ~~executes a~~ 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 standstill provisions of any confidentiality agreement ~~with terms no less favorable~~ to ~~the~~ which Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in is a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such actionparty. (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

Samples: Merger Agreement (Peritus Software Services Inc)

No Solicitation; Other Offers. (a) From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 108, the Company and its Subsidiaries ~~will~~ shall not, ~~and the Company will use its reasonable best efforts to cause~~ nor shall they permit any of their Affiliates to, nor shall they authorize any of the officers, directors, employees, investment bankers, consultants or and other agents ~~or representatives (collectively, "Agents")~~ and Affiliates of the Company and its Subsidiaries ~~not~~ to, directly or indirectly, (i) solicit, ~~initiate~~ initiate, encourage, induce or ~~encourage~~ knowingly facilitate (including by way of furnishing information) the submission of any Acquisition ~~Proposal~~Proposal or any inquiries with respect thereto, (ii) engage in discussions or negotiations with any Person concerning an Acquisition ~~Proposal,~~ Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the ~~knowledge~~ Knowledge of the Company, is making or considering making, or who has made, ~~an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to~~ 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 the Company or any of its Subsidiaries by any Person who, to the ~~knowledge~~ Knowledge of the Company, is ~~making,~~ making or considering making or who has made, an Acquisition Proposal. The Company shall ~~promptly~~ provide such notice orally and in writing and shall identify the Person making, and ~~all~~ the terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent ~~promptly~~ informed of the status and details ~~of any such Acquisition Proposal~~ (including amendments or proposed amendments) ~~or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies~~ of any ~~written communications between the Company and any Person making the~~ such Acquisition ~~Proposal~~Proposal or request. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition ~~Proposal. Nothing contained in this Agreement shall prevent~~ Proposal and, to the ~~Board of Directors of~~ extent within its power, to recover or cause to be destroyed all information concerning the Company ~~from complying with Rule 14d-9 or Rule 14e-2 under~~ and its Subsidiaries in the ~~1934 Act with respect to any Acquisition Proposal~~possession of such Persons and their Affiliates, representatives and advisors. (b) Notwithstanding the ~~foregoing~~first sentence of Section 6.05(a), the Company ~~may prior to receipt of~~ may, until the ~~NGH~~ Company Stockholder ~~Approval~~ Meeting (~~as defined in~~ the ~~NGH Voting Agreement~~“Cutoff Date”), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of this Section ~~6.04(a)~~6.05, (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal ~~is likely~~ could reasonably be expected to result in a Superior Proposal and, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action ~~would~~ could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, and (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (~~except as to~~ including the standstill ~~provisions) and (iv)~~ provisions unless the Company shall have ~~delivered~~ amended the Confidentiality Agreement to modify the standstill provisions therein to be no more restrictive of Parent ~~prior written notice advising~~ than such Person is restricted pursuant to such confidentiality agreement). The Company shall provide Parent ~~that it intends~~ any information regarding the Company or its Subsidiaries provided to ~~take such action~~any Person making an Acquisition Proposal which was not previously provided to Parent. Nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with Rule 14d-9, Item 1012(a) of Regulation M-A and Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company’s stockholders required by applicable law or regulation. (c) ~~The~~ Except as permitted in this Section 6.05(c), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, or take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of this Agreement and the Merger or with the recommendation to stockholders referred to in Section 2.08 hereof, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the Cutoff Date, the Board of Directors of the Company shall be permitted not to recommend to its stockholders approval and adoption of this Agreement and the Merger, or to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section ~~6.02 hereof~~2.08 hereof (each, an “Adverse Recommendation Change”), but only if (i) the Company has complied with the terms of this Section ~~6.04(a)~~6.05, (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action ~~would constitute a breach of~~ could reasonably be deemed to be inconsistent with its fiduciary duties under applicable ~~law and~~ law, (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action, together with a full and complete copy of the Superior Proposal at least three Business Days prior to the Adverse Recommendation Change (it being understood and agreed that any amendment to the financial terms or any other material terms of such Superior Proposal shall require a new notice and a new three-Business Day period), (v) the Company shall have negotiated in good faith with Parent during such three-Business Day period to make such amendments to the terms and conditions of this Agreement as would enable the Board of Directors of the Company to proceed with its recommendation of this Agreement (as so amended) and the Merger and not make the Adverse Recommendation Change, and (vi) prior to the expiration of such three-Business Day period, Parent fails to make a proposal to adjust the terms and conditions of this Agreement that the Board of Directors of the Company determines in good faith (after consultation with its financial advisors) to be at least as favorable as the Superior Proposal. (d) ~~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 (Lee Enterprises Inc)

No Solicitation; Other Offers. (a) From the date hereof until the ~~earlier~~ acceptance for payment by Merger Subsidiary of the ~~Effective Time and~~ Shares tendered into the Offer or the earlier termination ~~of this Agreement in accordance with Article 10~~hereof, the Company ~~and its Subsidiaries~~ will not, and ~~the Company~~ will ~~use~~ cause its ~~reasonable best efforts to cause~~ Subsidiaries and the officers, directors, ~~employees,~~ investment bankers, attorneys, accountants, consultants or other agents or ~~representatives (collectively, "Agents")~~ advisors of the Company and its Subsidiaries not ~~to, directly or indirectly,~~ to (i) ~~solicit, initiate~~ take any action (y) to solicit or ~~encourage~~ (z) for the primary purpose of initiating or encouraging the submission of any Acquisition Proposal, (ii) engage in substantive discussions or negotiations ~~with any Person concerning an Acquisition Proposal~~with, ~~(iii)~~ 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, any Person ~~who,~~ who the Company should reasonably be expected to ~~the knowledge of the Company,~~ know is considering making, or has made, an Acquisition Proposal or (iviii) ~~take~~ otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other ~~action~~ Person, in each case, for the primary purpose of making any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to ~~facilitate~~ abandon, terminate or fail to consummate the Offer, the Merger or any ~~inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal~~other transaction contemplated by this Agreement. 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~~ 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,~~ who the Company should reasonably be expected to ~~the knowledge of the Company,~~ know is considering making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, officers and other agents 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. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule ~~14d-9 or Rule~~ 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, prior to the acceptance for payment by Merger Subsidiary of the Shares tendered in the Offer the Company ~~may prior~~ may, if it gives Parent notice of its intention to ~~receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement)~~do so, negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person ~~in response to~~ who delivers an unsolicited ~~Acquisition~~ Superior Proposal ~~by such Person~~ if (i) the Company has complied with the terms of this Section ~~6.04(a)~~7.04, ~~(ii)~~ including, without limitation, the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. (d) For purposes of this Agreement:requirement

Appears in 1 contract

Samples: Merger Agreement (Gibson Greetings Inc)

No Solicitation; Other Offers. (a) ~~From~~ After the date hereof ~~until~~ and prior to the Closing Date or earlier ~~of the Effective Time and the~~ termination of this Agreement in accordance with ~~Article 10~~its terms, the ~~Company and its Subsidiaries~~ Sellers will not, and the ~~Company~~ Sellers will ~~use its reasonable best efforts to~~ cause their Subsidiaries and Affiliates and the officers, directors, employees, investment bankers, attorneys, consultants or and other agents ~~or representatives (collectively, "Agents")~~ and advisors of the ~~Company~~ Sellers and ~~its~~ 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,~~ Proposal or (ii) encourage or engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal~~with, ~~(iii)~~ or disclose any nonpublic information relating to the ~~Company~~ Targeted Businesses or ~~any~~ afford access to the properties, books or records of ~~its Subsidiaries to~~ the Targeted Businesses or of the Sellers regarding the Target Assets to, any Person ~~who~~(other than to Purchaser, ~~to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or (iv~~its representatives and advisors) ~~take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to~~ concerning an Acquisition Proposal. The ~~Company~~ Sellers will notify ~~Parent promptly (~~Purchaser as soon as reasonably practicable, but in ~~no event later than 24 hours) after receipt~~ any event, within forty-eight hours of any Acquisition Proposal received by the ~~Company~~ 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 any request for nonpublic information relating to the ~~Company~~ Targeted Businesses or for access to the properties, books or records of the Sellers or any of ~~its~~ their Subsidiaries by any Person ~~who, to the knowledge of the Company,~~ who is considering making, or has made, an Acquisition Proposal. The ~~Company~~ Sellers shall ~~promptly~~ provide such notice orally and in writing and shall identify the Person making, and ~~all~~ the terms and conditions of, any such Acquisition ~~Proposal~~ Proposal, indication or ~~request~~request and shall also include, as and when received, copies of any written offer, proposal or materials received. The ~~Company~~ Sellers shall keep ~~Parent promptly informed~~ Purchaser fully informed, on a current basis, of the status and details of any such Acquisition ~~Proposal (including amendments~~ Proposal, indication or ~~proposed amendments) or request~~ request. Upon execution of this Agreement, the Sellers shall and shall cause their Subsidiaries, and their respective officers, directors, Affiliates, representatives, consultants and advisors to immediately cease any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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~~ execution of this Agreement with respect to any Acquisition ~~Proposal. Nothing contained~~ Proposal and shall request (or if any of them has contractual rights to do so, demand) the return of all documents, analyses, financial statements, projections and other data and information previously furnished to others in ~~this Agreement shall prevent the Board of Directors of the Company from complying~~ connection with ~~Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to~~ any potential Acquisition Proposal. (b) Notwithstanding the foregoing, the ~~Company~~ Sellers may ~~prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise~~ engage in ~~substantive~~ discussions or negotiations with, and furnish nonpublic information or access to, any Person in response to an unsolicited Acquisition Proposal by such Person received without violation of this Agreement if (i) the ~~Company has~~ Sellers have complied with the terms of Section ~~6.04(a~~5.2(a), (ii) the Board of Directors of Sylvan or the ~~Company~~ Special Committee of Sylvan, as appropriate, determines in good faith that such Acquisition Proposal ~~is likely to~~ would result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be deemed to constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the ~~Company~~ Sellers than those contained in the Confidentiality Agreement ~~(except as to the standstill provisions)~~ and (iv) the ~~Company~~ Sellers shall have delivered to ~~Parent~~ Purchaser three Business Days' prior written notice (the "First Notice") advising ~~Parent~~ Purchaser that it intends to take such action. Upon receipt of the First Notice, Purchaser will notify the Sellers as soon as reasonably practicable, but in any event, within three Business Days after receipt of such notice, of the Termination Fee (the "Termination Fee Notice") it will elect in the event of termination of this Agreement on the basis of such Acquisition Proposal pursuant to Section 7.3(a)(x) or 7.3(a)(y). If Purchaser elects the Termination Fee pursuant to Section 7.3(a)(y), it shall not be required to make the election provided in subparts (a) and (b) of that section at the time it provides the Termination Fee Notice, but shall be required to make such election no later than five Business Days after the Purchaser's receipt of the notice specified in Section 7.1(c)(iii)(C). The Sellers shall deliver no more than one First Notice with respect to a Person that has provided an Acquisition Proposal unless such Person provides a new Acquisition Proposal following a matching offer by Purchaser pursuant to Section 7.1(c)(ii)(D). (c) ~~The~~ Nothing contained in this Section 5.2 or any other provision of this Agreement shall prohibit the Sellers or any director, officer, agent or employee of the Sellers from (i) taking and disclosing to Sylvan's shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 and 14e-2 promulgated under the Exchange Act or (ii) making such disclosure to Sylvan's shareholders as, in the good faith judgment of Sylvan's Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside ~~legal~~ counsel, ~~that the failure to take such action would constitute a breach of its fiduciary duties~~ is required under applicable ~~law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action~~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) ~~From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the~~ The Company ~~and its Subsidiaries will~~ shall not, and ~~the Company will~~ shall not permit any of its Subsidiaries to, and shall use its ~~reasonable~~ best efforts to ~~cause the~~ ensure that its officers, ~~directors,~~ directors or employees, or any investment bankers, consultants or other agents retained by it or ~~representatives (collectively, "Agents")~~ any of ~~the Company and~~ its Subsidiaries ~~not to~~to not, ~~directly or indirectly, (i)~~ solicit, ~~initiate or~~ initiate, encourage the submission of any Acquisition ~~Proposal, (ii)~~ Proposal or engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company~~ or ~~any of its Subsidiaries~~ furnish to any ~~Person who,~~ person any information with respect to ~~the knowledge of the Company, is considering making, or has made,~~ an Acquisition Proposal or ~~(iv) take any other action to~~ knowingly facilitate any ~~inquiries~~ effort or ~~the making of any proposal that constitutes or that could reasonably be expected~~ attempt to ~~lead to~~ make an Acquisition Proposal. The Company will notify Parent ~~promptly (but in no event later than 24 hours) after~~ within 48 hours of receipt by the Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries by any ~~Person~~ person who, to the knowledge of the Company, is ~~making,~~ making or considering making or who has made, an Acquisition Proposal. The Company shall ~~promptly~~ provide such notice orally and in writing ~~and shall identify~~ including the ~~Person making, and all~~ terms and conditions ~~of,~~ of any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any ~~Persons~~ persons conducted prior to the date hereof with respect to any Acquisition ~~Proposal~~Proposal and, to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the ~~1934~~ Exchange Act with respect to any Acquisition ~~Proposal~~Proposal or making any disclosure to the Company's stockholders if, in the good faith judgment of the majority of the disinterested members of the Board of Directors of the Company, failure to so disclose would be inconsistent with their fiduciary duties and violative of applicable law. (b) Notwithstanding the ~~foregoing~~first sentence of Section 5.2(a), 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~~ person in response to an unsolicited Acquisition Proposal by such ~~Person~~ person if (i1) the Company has complied with the terms of this Section ~~6.04(a)~~5.2, (ii2) a majority of the Board of Directors of the Company reasonably determines in good faith that such Acquisition Proposal ~~is likely~~ could reasonably be expected to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action ~~would~~ could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, and (~~iii~~3) such ~~Person~~ person executes a confidentiality agreement ~~with terms no less favorable to~~ in substantially the ~~Company than those contained in~~ form of the Confidentiality Agreement (~~except~~ as to defined below) (including the standstill provisions~~) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action~~). (c) Except as permitted by the second sentence of this Section 5.2(c), neither the Board of Directors of the Company nor any committee thereof shall (1) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, or take any action not explicitly permitted by this Agreement that would be inconsistent with, its approval of the Offer and the Merger, (2) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (3) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement related to any Acquisition Proposal. The Board of Directors of the Company shall be permitted (1) not to recommend to its shareholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (2) to withdraw, or modify in a manner adverse to Parent, its recommendation to its ~~stockholders~~ shareholders referred to in Section ~~6.02~~ 1.2 hereof, (3) approve or recommend any Superior Proposal or (4) terminate this Agreement and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (ix) the Company has complied with the terms of this Section ~~6.04(a)~~5.2, (iiy) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, and (~~iii~~z) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action ~~would constitute a breach of~~ could reasonably be deemed to be inconsistent with its fiduciary duties under applicable ~~law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action~~law. (d) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Command Systems Inc)

No Solicitation; Other Offers. (a) ~~From the date hereof~~ Unless and until ~~the earlier of the Effective Time and the termination of~~ this Agreement ~~in accordance with~~ will have been terminated pursuant to Article 1011, neither the Company ~~and its Subsidiaries will not~~nor the Company Subsidiary shall, nor shall the Company or the Company Subsidiary authorize, and the Company ~~will~~ and the Company Subsidiary shall use ~~its~~ all reasonable ~~best~~ efforts to ~~cause the~~ prevent, any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or ~~representatives (collectively, "Agents") of the Company and 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, (ii) ~~engage~~ enter into or participate in any discussions or negotiations ~~with~~ with, furnish any ~~Person concerning an Acquisition Proposal, (iii) disclose any nonpublic~~ non-public information relating to the Company or ~~any of its Subsidiaries to any Person who,~~ the Company Subsidiary (other than as to the ~~knowledge~~ existence of these provisions) or afford access to the business, properties, assets, books or records of the ~~Company~~Company or the Company Subsidiary to, ~~is considering making~~otherwise knowingly cooperate in any way with, or ~~has made~~knowingly assist, participate in, facilitate or encourage any effort by any Third Party to make an Acquisition ~~Proposal~~ Proposal, or (iviii) ~~take~~ enter into any ~~other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead~~ agreement with respect to an Acquisition Proposal. The Company ~~will notify Parent promptly (but in no event later than 24 hours) after receipt by~~ shall not submit to the ~~Company~~ vote of its stockholders any Acquisition Proposal other than this Agreement, or ~~any request for nonpublic information relating~~ propose to do so until after the termination of this Agreement. If the Company ~~or any~~ receives an unsolicited submission of ~~its Subsidiaries by any Person who, to the knowledge of the Company, is making, or has made,~~ an Acquisition ~~Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition~~ Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company ~~shall provide~~ is not in violation of this Section 6.03 with respect to ~~Parent copies~~ the submission of ~~any written communications between~~ such Acquisition Proposal, the Company ~~and any Person making~~ may inform the Stockholders of such Acquisition Proposal. . (b) The Company shall, and shall cause the Company ~~shall use reasonable best efforts to cause its Subsidiaries~~ Subsidiary and the ~~Agents~~ advisors, employees and other agents 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. Nothing contained~~ Proposal and shall use all commercially reasonable efforts to cause any such Party (or its agents or advisors) in ~~this Agreement shall prevent~~ possession of confidential information about the ~~Board of Directors~~ Company that was furnished by or on behalf of the Company ~~from complying with Rule 14d-9~~ to return or ~~Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal~~destroy all such information. (b) Notwithstanding the foregoing, the Company may prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. (d) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Mercury Interactive Corp)

No Solicitation; Other Offers. (a) From the date ~~hereof~~ of this Agreement until ~~the earlier of~~ the Effective Time ~~and~~ 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 ~~and its Subsidiaries will~~ shall not, and ~~the Company will use~~ shall cause its ~~reasonable best efforts to cause the~~ Subsidiaries not to, and shall instruct its and its Subsidiaries’ respective directors, officers, ~~directors~~employees, ~~employees~~Affiliates, investment bankers, ~~consultants or~~ attorneys, accountants and other ~~agents~~ advisors or representatives (collectively, ~~"Agents"~~“Representatives”) ~~of the Company and its Subsidiaries~~ not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage the submission of any Acquisition Proposal, (ii) ~~engage~~ enter into or participate in any discussions or negotiations ~~with~~ with, furnish any ~~Person concerning an Acquisition Proposal, (iii) disclose 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, 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 instruct and its and its Subsidiaries’ Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party and its Representatives with respect to any Acquisition Proposal and shall use its reasonable best efforts to cause any such Third Party and its Representatives in possession of confidential information about the Company or any of its Subsidiaries that was furnished by or on behalf of the Company in connection with a proposed Acquisition Proposal or any 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 applicable confidentiality agreements. (b) Notwithstanding anything contained in Section 6.04(a) to the contrary, if at any time prior to obtaining the Company Stockholder Approval (and in no event after obtaining Company Stockholder Approval), (i) the Board of Directors of the Company receives a bona fide written Acquisition Proposal made after the date hereof which has not resulted from a breach of this Section 6.04 that the Board of Directors of the Company determines in good faith, after consultation with its financial advisor and outside legal counsel, is or is reasonably likely to lead to a Superior Proposal and (ii) the Board of 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, 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 ~~who~~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) In addition to the requirements set forth in ‎Section 6.04(b), the Board of Directors of the Company shall not take any of the actions referred to in clauses (A) through (C) of Section 6.04(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, on a reasonably current basis, after taking any such action of the status and material terms of any discussions and negotiations with the applicable Third Party with respect to the Acquisition Proposal. In addition, prior to obtaining the Company Stockholder Approval, the Company shall notify Parent promptly (but in no event later one Business Day) after receipt by the Company (or any of its Representatives) of any Acquisition Proposal or 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, to the knowledge of the Company, is considering making, or has made, an Acquisition ~~Proposal or (iv) take~~ Proposal, which notice shall be provided in writing and shall identify the relevant Third Party, to the extent known, the material terms and conditions of, any ~~other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an~~ such Acquisition Proposal. The Company ~~will notify~~ shall keep Parent ~~promptly~~ informed, on a reasonably prompt basis (but in no event ~~later~~ more than ~~24 hours)~~ one Business Day after ~~receipt by~~ actual receipt), of the ~~Company~~ status and material terms of any such Acquisition ~~Proposal~~ Proposal, (including any material changes thereto) and shall provide to Parent copies of all material correspondence and written materials sent or ~~any request for nonpublic information relating~~ provided to the Company or any of its Subsidiaries by that describes any ~~Person who, to the knowledge of the Company, is making,~~ terms or ~~has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and~~ conditions ~~of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details~~ of any ~~such~~ Acquisition Proposal (~~including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies~~ as well as written summaries of any ~~written~~ material oral communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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. Nothing contained addressing such matters). (d) Notwithstanding anything in this Agreement ~~shall prevent~~ to the contrary, at any time prior to obtaining the Company Stockholder Approval (and in no event after the obtaining the Company Stockholder Approval), the Board of Directors of the Company ~~from complying with Rule 14d-9~~ may effect an Adverse Recommendation Change involving or ~~Rule 14e-2 under the 1934 Act with respect~~ relating to ~~any Acquisition Proposal. (b) Notwithstanding the foregoing, the~~ a 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 Acquisition Proposal by such Person Intervening Event if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would ~~constitute a breach of~~ be reasonably likely to be inconsistent with its fiduciary duties under ~~applicable law and~~ Applicable Law; provided that (ivi) the Company shall ~~have delivered~~ (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 (B) negotiate in good faith with Parent (if requested by Parent in writing) for five (5) Business Days following such notice regarding any revisions to the 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 a ~~prior written notice advising Parent~~ Company Intervening Event unless, after the five (5) Business Day period described in the foregoing clause (B), the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that it 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 intends to take such action, which notice attaches the most current version of any proposed transaction agreement or a summary of all material terms of such Superior Proposal and the 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 (and the Company shall 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 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 (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 be required to comply with the requirements of this Section 6.04(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) From the date hereof until the ~~earlier of the Effective Time and the~~ termination ~~of this Agreement in accordance with Article 10~~hereof, the Company ~~and its Subsidiaries~~ will not, and ~~the Company~~ will ~~use~~ cause its ~~reasonable best efforts to cause~~ Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or ~~representatives (collectively, "Agents")~~ 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, (ii) engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal~~with, ~~(iii)~~ or disclose any nonpublic information relating to the Company or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to, any Person ~~who,~~ who the Company has reason to ~~the knowledge of the Company, is~~ believe may be considering making, or has made, an Acquisition Proposal or ~~(iv) take any other action to facilitate~~ any inquiries or the making of any proposal that ~~constitutes~~ constitutes, or ~~that could~~ may reasonably be expected to lead ~~to an~~ 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 24 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,~~ who the Company has reason to ~~the knowledge of the Company, is~~ believe may be considering making, or has made, an Acquisition Proposal. The Company shall ~~promptly~~ provide such notice orally and in writing and shall identify the Person making, and ~~all~~ the terms and conditions of, any such Acquisition ~~Proposal~~ Proposal, indication or request. The Company shall keep Parent ~~promptly informed~~ fully informed, on a current basis, of the status and details of any such Acquisition ~~Proposal (including amendments or proposed amendments)~~ Proposal, indication or request ~~and~~ (including, without limitation, any ~~discussions or negotiations pursuant~~ material changes to ~~Section 6.04(b) and~~ the ~~Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal~~terms thereof). The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, the Company may ~~prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement),~~ negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person ~~in response to an unsolicited Acquisition~~ who delivers a Superior Proposal ~~by such Person~~ if (i) the Company has complied with the terms of this Section ~~6.04(a)~~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 determines in good faith ~~that such Acquisition Proposal is likely to result in~~ by a ~~Superior Proposal and~~majority vote, ~~after consultation with~~ on the basis of advice from its outside legal counsel, that ~~the failure to take such action would constitute a breach of~~ consistent with its fiduciary duties under applicable law, 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 (except as to the standstill provisions) and~~ Agreement, (iv) the Company shall have delivered to Parent four business days' prior written notice advising Parent that it intends to take such ~~action~~action and (v) the Offer shall not have closed. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its approval and recommendation to its ~~stockholders~~ shareholders referred to in ~~Section 6.02~~ Sections 2.02 and 7.02 hereof, but only if (i) the Company has complied with the terms of this Section ~~6.04(a)~~7.04, including, without limitation, the requirement in Section 7.04(a) that it notify Parent promptly after its receipt of any Acquisition Proposal, (ii) a Superior Proposal is pending at the ~~Company has received an unsolicited Acquisition Proposal which~~ time the Company's Board of Directors determines to take any such action, (iii) the Company's Board of Directors determines in good faith ~~constitutes~~ by a ~~Superior Proposal~~majority vote, ~~(iii)~~ on the ~~Board of Directors~~ basis of the ~~Company determines in good faith, after consultation with~~ advice of its outside legal counsel, that ~~the failure to take such action would constitute a breach of~~ consistent with its fiduciary duties under applicable ~~law~~ law, it must take such action and (iv) the Company shall have delivered to Parent a four business days' prior written notice advising Parent that it intends to take such action~~. (d)~~ . 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

Samples: Merger Agreement (Fcy Acquisition Corp)

No Solicitation; Other Offers. (a) From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the Company and its Subsidiaries will not, and the Company will use its reasonable best efforts to cause the officers, directors, employees, investment bankers, consultants or other agents or representatives (collectively, "~~Agents~~AGENTS") of the Company and its Subsidiaries not to, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal, (ii) engage in discussions or negotiations with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause ~~its Subsidiaries and~~ the 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~~Proposal or request. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition ~~Proposal~~Proposal or shall prevent NA and its Agents from taking any action permitted under Section 6.04 of the NA Merger Agreement. (b) Notwithstanding the foregoing, the Company ~~may~~ may, at any time prior to ~~receipt of~~ the ~~NGH Stockholder Approval (as defined in~~ time the ~~NGH Voting~~ Company's stockholders shall have voted to approve this Agreement), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a 24 hours prior written notice advising Parent that it intends to take such action. (d) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Rj Reynolds Tobacco Holdings Inc)

No Solicitation; Other Offers. (a) ~~From~~ Except as provided in this Section 5.15(a) or in Section 5.15(b), from and after the date ~~hereof~~ of this Agreement until the earlier of the Effective Time and the termination of this Agreement ~~in accordance with~~ pursuant to Article 10VII, the Company (i) shall, and shall cause its Subsidiaries ~~will not,~~ and the ~~Company will use its reasonable best efforts to cause the officers, directors, employees, investment bankers, consultants or other agents or representatives (collectively, "Agents")~~ respective Representatives of the Company and its Subsidiaries to, immediately cease and cause to be terminated any 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, ~~directly or indirectly,~~ (iA) solicit, initiate or ~~encourage~~ knowingly take any action designed to facilitate the submission of any Acquisition Proposal, (iiB) engage in any discussions or negotiations ~~with any Person concerning an Acquisition Proposal~~with, ~~(iii) disclose~~ or furnish any nonpublic information relating to the Company or any of its Subsidiaries to to, any ~~Person who,~~ Third Party that to the knowledge of the ~~Company,~~ Company is ~~considering making, or has made, an Acquisition Proposal or (iv) take any other action~~ seeking to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is makingmake, or has made, an Acquisition Proposal~~. The Company shall promptly provide such notice orally and in writing and shall identify the Person making~~, ~~and all terms and conditions of,~~ or (C) enter into any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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 agreement with respect to any Acquisition Proposal~~. Nothing~~ ; provided, however, that nothing contained in this Section 5.15 or any other provision of this Agreement shall ~~prevent~~ 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 ~~of Directors~~ 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 negotiations with such Person or group concerning an Acquisition if, and only if: (x) such Person or group has, 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 proposal or inquiry received by the Company from ~~complying with Rule 14d-9 or Rule 14e-2 under~~ a Third Party after the ~~1934 Act~~ date hereof with respect to any Acquisition Proposal. (b) ~~Notwithstanding the foregoing~~Except as set forth in this Section 5.15(b), neither 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,~~ Board nor any ~~Person in response to an unsolicited Acquisition Proposal by such Person if~~ committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval or recommendation by the Company ~~has complied~~ Board or any such committee of this Agreement or the transactions contemplated hereby, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (iii) enter into any agreement with ~~the terms of Section 6.04(a~~respect to any Acquisition Proposal (any action described in clauses (i), (ii) or (iii) being referred to as a “Company Recommendation Change”). Notwithstanding anything in this Agreement to the contrary, the Company Board may make a Company Recommendation Change if (A) the Company shall have received a Superior Proposal or (B) the Company Board shall have determined in good faith, based upon advice of outside counsel, that failing to take such action would be reasonably likely to constitute a breach of the Company Board’s fiduciary duties to the Stockholders under applicable Law; provided, however, that no Company Recommendation Change may be made in response to a Superior Proposal until after the third (3rd) Business Day following 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 ~~determines in good faith that~~ intends to make such ~~Acquisition Proposal is likely to result in a~~ Company Recommendation Change and specifying the terms and conditions of such Superior Proposal ~~and, after consultation with outside legal counsel,~~ (it being understood and agreed that ~~the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable~~ any amendment to the ~~Company than those contained in the Confidentiality Agreement (except as~~ financial terms or other material terms of such Superior Proposal, which is adverse to the ~~standstill provisions~~Company, shall require a new Company Recommendation Change Notice and a new three (3) ~~and~~ Business Day period (ivunless 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 ~~have delivered~~ provide as much notice as is reasonably practicable)). In determining whether to ~~Parent prior written notice advising Parent that it intends~~ make a Company Recommendation Change in response to ~~take such action. (c) The Board of Directors of~~ a Superior Proposal, the Company Board shall ~~be permitted~~ take into account any changes to ~~withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with~~ the terms of ~~Section 6.04(a),~~ this Agreement proposed by Parent (iiin response to a Company Recommendation Change Notice or otherwise) ~~the Company has received an unsolicited~~ in determining whether such third party Acquisition Proposal ~~which the Board of Directors determines in good faith~~ still constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. ~~(d) For purposes of this Agreement:~~

Appears in 1 contract

Samples: Merger Agreement (Document Sciences Corp)

No Solicitation; Other Offers. (a) ~~From the date hereof until~~ Prior to the earlier of the ~~Effective Time~~ Closing and the valid termination of this ~~Agreement in accordance with Article 10~~Agreement, the ~~Company and its Subsidiaries will~~ Coyote Entities shall not, and ~~the Company will use its reasonable best efforts to cause~~ shall direct the officers, directors, managers, members, employees, stockholders, representatives, agents, investment ~~bankers, consultants or other agents or representatives (collectively, "Agents")~~ bankers and any of ~~the Company and its Subsidiaries~~ their respective Affiliates not to, directly or indirectly, (i) pursue, solicit, ~~initiate~~ 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 ~~submission~~ 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 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 Affiliates have no reason to believe that such information will be utilized to evaluate any Acquisition Proposal, or (iiiii) ~~engage in~~ enter into a Contract with respect to an Acquisition Proposal. Coyote shall, and shall cause its Subsidiaries and direct the officers, directors, members, managers, employees, stockholders, representatives, agents, investment bankers and any of their respective Affiliates to, (A) immediately cease and cause to be terminated, all existing discussions or negotiations with any ~~Person concerning an Acquisition Proposal~~Persons conducted heretofore with respect to, (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making, or has madeto, an Acquisition Proposal~~. The Company shall~~ , (B) promptly ~~provide such notice orally and in writing and shall identify~~ notify Roadrunner if any Acquisition Proposal, or any inquiry or contact with any Person with respect thereto which is made after the ~~Person making~~date of this Agreement, and ~~all~~ 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 ~~of, any such Acquisition Proposal~~ discussed or ~~request. The Company shall~~ proposed); and (C) keep ~~Parent promptly~~ Roadrunner reasonably informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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. Nothing contained in this Agreement shall prevent~~ the ~~Board of Directors~~ status of the ~~Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal~~foregoing. (b) ~~Notwithstanding~~ Roadrunner shall not, and shall cause the ~~foregoing~~Roadrunner Subsidiaries and direct its and their respective officers, ~~the Company may prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement)~~directors, ~~negotiate~~ managers, members, employees, representatives, agents and investment bankers not to, directly or indirectly, pursue, solicit, initiate, knowingly facilitate or encourage, or otherwise ~~engage in substantive discussions with~~enter into any discussions, ~~and furnish nonpublic information~~ negotiations, agreements or other arrangements regarding or which would reasonably be expected to lead to, an acquisition, sale, disposition or other transaction, with any Person ~~in response to an unsolicited Acquisition Proposal by such Person if (i)~~ other than the ~~Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith~~ Sellers or their Affiliates that ~~such Acquisition Proposal is likely to~~ would result in a ~~Superior Proposal and~~Roadrunner Acquisition Transaction or would reasonably be expected to have a material adverse effect on the ability of Roadrunner, ~~after consultation~~ New Pubco or Merger Sub to consummate the transactions contemplated by this Agreement or the other Transaction Agreements (a “Conflicting Transaction”) or enter into a Contract with ~~outside legal counsel~~any other Person in respect of a Conflicting Transaction, ~~that the failure~~ and 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 ~~take such action would constitute a breach of its fiduciary duties under applicable law~~be terminated, ~~(iii) such Person executes a confidentiality agreement~~ all existing discussions or negotiations with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdrawany Persons conducted heretofore with respect to, or ~~modify in~~ that would reasonably be expected to lead to, a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. (d) Conflicting Transaction. 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) From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the~~ The Company ~~and its Subsidiaries will~~ shall not, and ~~the Company will~~ shall not permit any of its Subsidiaries to, and shall use its ~~reasonable~~ best efforts to ~~cause the~~ ensure that its officers, ~~directors,~~ directors or employees, or any investment bankers, ~~consultants~~ consultants, financial advisors, accountants, agents or other ~~agents~~ representatives retained by it or ~~representatives (collectively, "Agents")~~ any of ~~the Company and~~ its Subsidiaries ~~not to~~do not, ~~directly or indirectly, (i)~~ solicit, ~~initiate or~~ initiate, encourage the submission of any Acquisition ~~Proposal, (ii)~~ Proposal or engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company~~ or ~~any of its Subsidiaries~~ furnish to any Person ~~who,~~ any information with respect to ~~the knowledge of the Company, is considering making, or has made,~~ an Acquisition Proposal or ~~(iv) take any other action to~~ knowingly facilitate any ~~inquiries~~ effort or ~~the making of any proposal that constitutes or that could reasonably be expected~~ attempt to ~~lead to~~ make an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ 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~~Proposal and, to the extent within its power, to recover or cause to be destroyed all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisors. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the ~~1934~~ Exchange Act with respect to any Acquisition ~~Proposal. (b)~~ Proposal or making any disclosure to the Company's stockholders if, in the good faith judgment of the majority of the members of the Board of Directors of the Company, after consultation with and advice from outside legal counsel, failure to so disclose would reasonably be deemed to constitute a breach of the fiduciary duties of the Board of Directors under applicable Law. Notwithstanding the ~~foregoing~~first sentence of Section 6.05(a), until the receipt of the Required Vote (as hereinafter defined), 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 Acquisition Proposal by such Person if (i) ~~the Company has complied with the terms~~ a majority of ~~Section 6.04(a), (ii)~~ the Board of Directors of the Company determines in good ~~faith~~ faith, after receiving the advice of a nationally recognized financial advisor, that such Acquisition Proposal ~~is likely~~ would reasonably be expected to result in a Superior Proposal and, after consultation with and advice from outside legal counsel, that the failure to take such action would reasonably be deemed to constitute a breach of its fiduciary duties under applicable ~~law~~Law, and (~~iii~~ii) such Person executes a confidentiality agreement ~~with terms~~ in a form no less favorable to the Company than ~~those contained in~~ the Confidentiality Agreement (~~except as to~~ including the standstill provisions~~) and (iv)~~ ). 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 ~~have~~ 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 ~~Parent prior written notice advising Parent~~ such person which has not previously been reviewed by Parent. Except as permitted by the second sentence of this Section 6.05(d), neither the Board of Directors of the Company nor any committee thereof shall, withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 1.02 hereof, or take any action not explicitly permitted by this Agreement that ~~it intends~~ would be inconsistent with, its approval of the Offer and the Merger, approve or recommend, or publicly propose to ~~take such action. (c) The~~ approve or recommend, any Acquisition Proposal or cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, until receipt of the Required Vote, 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 ~~6.02~~ 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 (~~i) the Company has complied with the terms of Section 6.04(a), (ii~~y) the Company has received an ~~unsolicited~~ Acquisition Proposal which the Board of Directors determines in good ~~faith~~ faith, after receiving the advice of a nationally recognized financial advisor, constitutes a Superior ~~Proposal,~~ Proposal and (~~iii~~z) the Board of Directors of the Company determines in good faith, after consultation with and advice from outside legal counsel, that the failure to take such action ~~would~~ could reasonably be deemed to constitute a breach of its fiduciary duties under applicable ~~law and (iv)~~ Law. For purposes of this Section 6.05, the parties agree that the scope of the fiduciary duty of the Board of Directors of the Company shall not be deemed to be limited or constrained by virtue of the fact that certain stockholders of the Company have ~~delivered~~ agreed in the Voting and Tender Agreement to ~~Parent a prior written notice advising Parent that it intends~~ tender their shares to the Purchaser and to vote in favor of the Merger, and in considering whether its failure to take ~~such action. (d)~~ any action specified above would reasonably be deemed to be a breach of its fiduciary duties to the stockholders of the Company under applicable Law, the Board of Directors shall be entitled to assume that the Voting and Tender Agreement has been terminated. For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Hungry Minds Inc /De/)

No Solicitation; Other Offers. (a) From the date hereof until the ~~earlier~~ acceptance for payment by Merger Subsidiary of the ~~Effective Time and~~ Shares tendered into the Offer or the earlier termination ~~of this Agreement in accordance with Article 10~~hereof, the Company ~~and its Subsidiaries~~ will not, and ~~the Company~~ will ~~use~~ cause its ~~reasonable best efforts to cause~~ Subsidiaries and the officers, directors, ~~employees,~~ investment bankers, attorneys, accountants, consultants or other agents or ~~representatives (collectively, "Agents")~~ advisors of the Company and its Subsidiaries not ~~to, directly or indirectly,~~ to (i) ~~solicit, initiate~~ take any action (y) to solicit or ~~encourage~~ (z) for the primary purpose of initiating or encouraging the submission of any Acquisition Proposal, (ii) engage in substantive discussions or negotiations ~~with any Person concerning an Acquisition Proposal~~with, ~~(iii)~~ 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, any Person ~~who,~~ who the Company should reasonably be expected to ~~the knowledge of the Company,~~ know is considering making, or has made, an Acquisition Proposal or (iviii) ~~take~~ otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other ~~action~~ Person, in each case, for the primary purpose of making any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to ~~facilitate~~ abandon, terminate or fail to consummate the Offer, the Merger or any ~~inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal~~other transaction contemplated by this Agreement. The Company will notify Parent promptly ~~(but in no event later than 24 hours)~~ after receipt by the 32 Company (or any of its advisors) of any Acquisition ~~Proposal~~ 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,~~ who the Company should reasonably be expected to ~~the knowledge of the Company,~~ know is considering making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall identify the Person making, and all terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details of any such Acquisition Proposal (including amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, officers and other agents 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. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule ~~14d-9 or Rule~~ 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, prior to the acceptance for payment by Merger Subsidiary of the Shares tendered in the Offer the Company ~~may prior~~ may, if it gives Parent notice of its intention to ~~receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement)~~do so, negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person ~~in response to~~ who delivers an unsolicited ~~Acquisition~~ Superior Proposal ~~by such Person~~ if (i) the Company has complied with the terms of this Section ~~6.04(a)~~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 determines in its good ~~faith that such Acquisition Proposal is likely to result in a Superior Proposal and~~faith, reasonable 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 constitute~~ could create a reasonable possibility of a breach of ~~its~~ the fiduciary duties of the Board of Directors under applicable law, and (iii) such Person executes a confidentiality agreement with ~~terms no less~~ the Company not more favorable to the ~~Company~~ recipient of such information than ~~those contained in~~ the Confidentiality ~~Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior~~ Agreement. For purposes of this Agreement, "Superior Proposal" means any bona fide, unsolicited written ~~notice advising Parent that it intends to take such action. (c) The Board of Directors~~ Acquisition Proposal for at least a majority of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the outstanding Shares on terms ~~of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii)~~ that the Board of Directors of the Company determines in good ~~faith~~faith by a majority vote, ~~after consultation with outside legal counsel~~on the basis of the advice of a financial advisor of nationally recognized reputation and taking into account all the terms and conditions of the Acquisition Proposal, ~~that~~ including any break-up fees, expense reimbursement provisions and conditions to consummation, (A) is more favorable to all the ~~failure to take such action would constitute a breach~~ Company's stockholders than as provided hereunder, (B) is reasonably capable of ~~its fiduciary duties under applicable law~~ obtaining any required financing and (ivC) ~~the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action~~is reasonably capable of 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) From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the~~ The Company ~~and its Subsidiaries will~~ shall not, and ~~the Company will use~~ shall cause its ~~reasonable best efforts to cause the~~ Representatives, officers, employees, directors, ~~employees~~agents, ~~investment bankers~~stockholders and other holders of Company Securities, ~~consultants or other agents or representatives~~ agents, Subsidiaries and Affiliates, and their respective Affiliates (collectively, ~~"Agents"~~the “Sellers Group”) ~~of the Company and its Subsidiaries~~ not to, directly or indirectly: (a) initiate, ~~(i)~~ solicit, ~~initiate~~ entertain, negotiate, accept or ~~encourage~~ materially discuss, directly or indirectly, any proposal or offer from any Person or group of Persons other than Parent and its Affiliates to acquire all or any significant part of the ~~submission~~ business and properties, capital stock or capital stock equivalents of any Company Entity, whether by merger, purchase of stock, purchase of assets, tender offer or otherwise (an “Acquisition Proposal~~, (ii~~”) ~~engage in discussions~~ or ~~negotiations~~ enter into a Contract with any Person ~~concerning~~ (other than Parent or its Affiliates) regarding an Acquisition Proposal; (b) provide any non-public information to any third party in connection with an Acquisition Proposal; or (c) enter into any Contract requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement and the other Transaction Documents. The Company agrees to immediately notify Parent if any member of the Sellers Group receives any indications of interest, requests for information or offers in respect of an Acquisition Proposal, (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal. 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 Company or any of its Subsidiaries by any Person who, to the knowledge of the Company, is making, or has made, an Acquisition Proposal. The Company shall promptly provide such notice orally and in writing and shall ~~identify~~ communicate to Parent in reasonable detail the ~~Person making, and all~~ terms ~~and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent promptly informed of the status and details~~ of any such ~~Acquisition Proposal (including amendments~~ indication, request or ~~proposed amendments) or request~~ offer, and ~~any discussions or negotiations pursuant to Section 6.04(b) and the Company~~ shall provide to Parent with copies of ~~any~~ all written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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 relating to any ~~Acquisition Proposal~~such indication, request or offer. ~~Nothing~~ Except for the terms contained ~~in this Agreement shall prevent~~ within the ~~Board of Directors of the Company from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing~~Promissory Note, the Company ~~may prior~~ represents (which representation is deemed 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 Acquisition Proposal by such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in be a ~~Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties~~ representation made under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such action. (c) The Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. (d) For ARTICLE III for all purposes of this Agreement:) that no member of the Sellers Group is party to or bound by any agreement with respect to an Acquisition Proposal other than under this Agreement. Parent shall have the right and remedy to have the provisions of this Section 6.07 specifically enforced by any court having jurisdiction, it being acknowledged and agreed that any breach or threatened breach thereof may cause irreparable injury to Parent and that money damages may not provide an adequate remedy to Parent, which right and remedy shall be independent of all others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Parent under law or in equity.

Appears in 1 contract

Samples: Merger Agreement (SHF Holdings, Inc.)

No Solicitation; Other Offers. (a) ~~From~~ After the date hereof ~~until~~ and prior to the Closing Date or earlier ~~of the Effective Time and the~~ termination of this Agreement in accordance with ~~Article 10~~its terms, the ~~Company and its Subsidiaries~~ Sellers will not, and the ~~Company~~ Sellers will ~~use its reasonable best efforts to~~ cause their Subsidiaries and Affiliates and the officers, directors, employees, investment bankers, attorneys, consultants or and other agents ~~or representatives (collectively, "Agents")~~ and advisors of the ~~Company~~ Sellers and ~~its~~ 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,~~ Proposal or (ii) encourage or engage in discussions or negotiations ~~with any Person concerning an Acquisition Proposal~~with, ~~(iii)~~ or disclose any nonpublic information relating to the ~~Company~~ Targeted Businesses or ~~any~~ afford access to the properties, books or records of ~~its Subsidiaries to~~ the Targeted Businesses or of the Sellers regarding the Target Assets to, any Person ~~who~~(other than to Purchaser, ~~to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal or (iv~~its representatives and advisors) ~~take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to~~ concerning an Acquisition Proposal. The ~~Company~~ Sellers will notify ~~Parent promptly (~~Purchaser as soon as reasonably practicable, but in ~~no event later than 24 hours) after receipt~~ any event, within forty-eight hours of any Acquisition Proposal received by the ~~Company~~ 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 any request for nonpublic information relating to the ~~Company~~ Targeted Businesses or for access to the properties, books or records of the Sellers or any of ~~its~~ their Subsidiaries by any Person ~~who, to the knowledge of the Company,~~ who is considering making, or has made, an Acquisition Proposal. The ~~Company~~ Sellers shall ~~promptly~~ provide such notice orally and in writing and shall identify the Person making, and ~~all~~ the terms and conditions of, any such Acquisition ~~Proposal~~ Proposal, indication or ~~request~~request and shall also include, as and when received, copies of any written offer, proposal or materials received. The ~~Company~~ Sellers shall keep ~~Parent promptly informed~~ Purchaser fully informed, on a current basis, of the status and details of any such Acquisition ~~Proposal (including amendments~~ Proposal, indication or ~~proposed amendments) or request~~ request. Upon execution of this Agreement, the Sellers shall and shall cause their Subsidiaries, and their respective officers, directors, Affiliates, representatives, consultants and advisors to immediately cease any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposal. The Company shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and the 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~~ execution of this Agreement with respect to any Acquisition ~~Proposal. Nothing contained~~ Proposal and shall request (or if any of them has contractual rights to do so, demand) the return of all documents, analyses, financial statements, projections and other data and information previously furnished to others in ~~this Agreement shall prevent the Board of Directors of the Company from complying~~ connection with ~~Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to~~ any potential Acquisition Proposal. (b) Notwithstanding the foregoing, the ~~Company~~ Sellers may ~~prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise~~ engage in ~~substantive~~ discussions or negotiations with, and furnish nonpublic information or access to, any Person in response to an unsolicited Acquisition Proposal by such Person received without violation of this Agreement if (i) the ~~Company has~~ Sellers have complied with the terms of Section ~~6.04(a~~5.2(a), (ii) the Board of Directors of Sylvan or the ~~Company~~ Special Committee of Sylvan, as appropriate, determines in good faith that such Acquisition Proposal ~~is likely to~~ would result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be deemed to constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the ~~Company~~ Sellers than those contained in the Confidentiality Agreement ~~(except as to the standstill provisions)~~ and (iv) the ~~Company~~ Sellers shall have delivered to ~~Parent~~ Purchaser three Business Days' prior written notice (the "FIRST NOTICE") advising ~~Parent~~ Purchaser that it intends to take such action. Upon receipt of the First Notice, Purchaser will notify the Sellers as soon as reasonably practicable, but in any event, within three Business Days after receipt of such notice, of the Termination Fee (the "TERMINATION FEE NOTICE") it will elect in the event of termination of this Agreement on the basis of such Acquisition Proposal pursuant to Section 7.3(a)(x) or 7.3(a)(y). If Purchaser elects the Termination Fee pursuant to Section 7.3(a)(y), it shall not be required to make the election provided in subparts (a) and (b) of that section at the time it provides the Termination Fee Notice, but shall be required to make such election no later than five Business Days after the Purchaser's receipt of the notice specified in Section 7.1(c)(iii)(C). The Sellers shall deliver no more than one First Notice with respect to a Person that has provided an Acquisition Proposal unless such Person provides a new Acquisition Proposal following a matching offer by Purchaser pursuant to Section 7.1(c)(ii)(D). (c) ~~The~~ Nothing contained in this Section 5.2 or any other provision of this Agreement shall prohibit the Sellers or any director, officer, agent or employee of the Sellers from (i) taking and disclosing to Sylvan's shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 and 14e-2 promulgated under the Exchange Act or (ii) making such disclosure to Sylvan's shareholders as, in the good faith judgment of Sylvan's Board of Directors of the Company shall be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with outside ~~legal~~ counsel, ~~that the failure to take such action would constitute a breach of its fiduciary duties~~ is required under applicable ~~law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action~~law. ~~(d) For purposes of this Agreement:~~

Appears in 1 contract

Samples: Asset Purchase Agreement (Sylvan Learning Systems Inc)

Appears in 1 contract

Samples: Merger Agreement (GAIN Capital Holdings, Inc.)

No Solicitation; Other Offers. (a) ~~From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10~~Except as required under applicable Law, the Company ~~and its Subsidiaries will~~ shall not, and ~~the Company will use~~ shall not authorize or permit any of its ~~reasonable best efforts to cause the~~ Subsidiaries, officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or ~~representatives (collectively, "Agents") of the Company and 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, (ii) ~~engage~~ enter into or participate in any discussions or negotiations ~~with~~ with, furnish any ~~Person concerning an Acquisition Proposal, (iii) disclose any nonpublic~~ confidential information relating to the Company or any of its Subsidiaries ~~to any Person who,~~ or afford access to the ~~knowledge~~ business, properties, assets, books or records of the ~~Company~~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 ~~considering making~~seeking to make, or has made, an Acquisition ~~Proposal~~ Proposal, or (iviii) ~~take~~ grant any ~~other action~~ waiver or release under any standstill or similar agreement to ~~facilitate~~ which the Company or any ~~inquiries or the making~~ of ~~any proposal that constitutes or that could reasonably be expected to lead to an Acquisition Proposal.~~ its Subsidiaries is a party. (b) The Company ~~will~~ shall, and shall cause its Subsidiaries, officers, directors, employees, investment bankers, attorneys and other agents and advisors to, notify ~~Parent~~ ABI promptly (but in no event later than 24 hours) after receipt by ~~the Company~~ any of such Persons of any Acquisition Proposal, any indication by a third party to any of such Persons that it is considering making an Acquisition Proposal or any request for ~~nonpublic~~ confidential 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 ~~Person who, to~~ third party that the ~~knowledge of the Company, is~~ Company reasonably believes may be considering making, or has made, an Acquisition Proposal. The Company ~~shall promptly provide such notice orally and in writing~~ shall, and shall cause all such other Persons to identify the ~~Person~~ third party making, and ~~all~~ the terms and conditions of, any such Acquisition ~~Proposal~~ Proposal, indication or request. The Company shall, and shall cause all such other Persons to, keep ~~Parent promptly informed~~ ABI fully informed, on a current basis, of the status and details of any such Acquisition ~~Proposal (including amendments~~ Proposal, indication or proposed amendments) or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies of any written communications between the Company and any Person making the Acquisition Proposalrequest. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause ~~its Subsidiaries and the Agents of the Company and its Subsidiaries~~ 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. Nothing contained~~ Proposal and use its commercially reasonable best efforts to cause any such Party (or its agents or advisors) in ~~this Agreement shall prevent~~ possession of confidential information about the ~~Board~~ Company or any of ~~Directors~~ its Subsidiaries that was furnished by or on behalf of the Company ~~from complying with Rule 14d-9~~ to return or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal. (b) Notwithstanding the foregoing, the Company may prior to receipt of the NGH Stockholder Approval (as defined in the NGH Voting Agreement), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by destroy all such Person if (i) the Company has complied with the terms of Section 6.04(a), (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take such actioninformation. (c) ~~The Board~~ For the avoidance of ~~Directors of the Company~~ doubt, nothing in this Agreement shall ~~be permitted to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 6.02 hereof, but only if~~ restrict (i) any holder of Company Shares from considering, negotiating or accepting any Acquisition Proposal, and nothing herein shall be construed to require any holder of Company Shares to participate or sell Company Shares in the ~~Company has complied with~~ Offer or through the ~~terms of Section 6.04(a)~~Trust, (ii) ABI or its appointed directors of the Company ~~has received an unsolicited~~ from voting against any Acquisition ~~Proposal which the Board of Directors determines in good faith constitutes a Superior~~ Proposal, and (iii) ~~the Board of Directors~~ performance of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law and (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such actionDIFA Merger Agreement. ~~(d) For purposes of this Agreement:~~

Appears in 1 contract

Samples: Transaction Agreement (Anheuser-Busch InBev S.A.)

No Solicitation; Other Offers. (a) From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 108, the Company and its Subsidiaries ~~will~~ shall not, ~~and the Company will use its reasonable best efforts to cause~~ nor shall they permit any of their Affiliates to, nor shall they authorize any of the officers, directors, employees, investment bankers, consultants or and other agents ~~or representatives (collectively, "Agents")~~ and Affiliates of the Company and its Subsidiaries ~~not~~ to, directly or indirectly, (i) solicit, ~~initiate~~ initiate, encourage, induce or ~~encourage~~ knowingly facilitate (including by way of furnishing information) the submission of any Acquisition ~~Proposal~~Proposal or any inquiries with respect thereto, (ii) engage in discussions or negotiations with any Person concerning an Acquisition ~~Proposal,~~ Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal or accept an Acquisition Proposal or (iii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to any Person who, to the ~~knowledge~~ Knowledge of the Company, is making or considering making, or who has made, ~~an Acquisition Proposal or (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or that could reasonably be expected to lead to~~ 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 the Company or any of its Subsidiaries by any Person who, to the ~~knowledge~~ Knowledge of the Company, is ~~making,~~ making or considering making or who has made, an Acquisition Proposal. The Company shall ~~promptly~~ provide such notice orally and in writing and shall identify the Person making, and ~~all~~ the terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent ~~promptly~~ informed of the status and details ~~of any such Acquisition Proposal~~ (including amendments or proposed amendments) ~~or request and any discussions or negotiations pursuant to Section 6.04(b) and the Company shall provide to Parent copies~~ of any ~~written communications between the Company and any Person making the~~ such Acquisition ~~Proposal~~Proposal or request. The Company shall, and ~~the Company~~ shall ~~use reasonable best efforts to~~ cause its Subsidiaries and the ~~Agents~~ directors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition ~~Proposal. Nothing contained in this Agreement shall prevent~~ Proposal and, to the ~~Board of Directors of~~ extent within its power, to recover or cause to be destroyed all information concerning the Company ~~from complying with Rule 14d-9 or Rule 14e-2 under~~ and its Subsidiaries in the ~~1934 Act with respect to any Acquisition Proposal~~possession of such Persons and their Affiliates, representatives and advisors. (b) Notwithstanding the ~~foregoing~~first sentence of Section 6.05(a), the Company ~~may prior to receipt of~~ may, until the ~~NGH~~ Company Stockholder ~~Approval~~ Meeting (~~as defined in~~ the ~~NGH Voting Agreement~~"Cutoff Date"), negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company has complied with the terms of this Section ~~6.04(a)~~6.05, (ii) the Board of Directors of the Company determines in good faith that such Acquisition Proposal ~~is likely~~ could reasonably be expected to result in a Superior Proposal and, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action ~~would~~ could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, and (iii) such Person executes a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (~~except as to~~ including the standstill ~~provisions) and (iv)~~ provisions unless the Company shall have ~~delivered~~ amended the Confidentiality Agreement to modify the standstill provisions therein to be no more restrictive of Parent ~~prior written notice advising~~ than such Person is restricted pursuant to such confidentiality agreement). The Company shall provide Parent ~~that it intends~~ any information regarding the Company or its Subsidiaries provided to ~~take such action~~any Person making an Acquisition Proposal which was not previously provided to Parent. Nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with Rule 14d-9, Item 1012(a) of Regulation M-A and Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company's stockholders required by applicable law or regulation. (c) ~~The~~ Except as permitted in this Section 6.05(c), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, or take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of this Agreement and the Merger or with the recommendation to stockholders referred to in Section 2.08 hereof, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, prior to the Cutoff Date, the Board of Directors of the Company shall be permitted not to recommend to its stockholders approval and adoption of this Agreement and the Merger, or to withdraw, or modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section ~~6.02 hereof~~2.08 hereof (each, an "Adverse Recommendation Change"), but only if (i) the Company has complied with the terms of this Section ~~6.04(a)~~6.05, (ii) the Company has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of the Company determines in good faith, after consultation with and receipt of advice from outside legal counsel, that the failure to take such action ~~would constitute a breach of~~ could reasonably be deemed to be inconsistent with its fiduciary duties under applicable ~~law and~~ law, (iv) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action, together with a full and complete copy of the Superior Proposal at least three Business Days prior to the Adverse Recommendation Change (it being understood and agreed that any amendment to the financial terms or any other material terms of such Superior Proposal shall require a new notice and a new three-Business Day period), (v) the Company shall have negotiated in good faith with Parent during such three-Business Day period to make such amendments to the terms and conditions of this Agreement as would enable the Board of Directors of the Company to proceed with its recommendation of this Agreement (as so amended) and the Merger and not make the Adverse Recommendation Change, and (vi) prior to the expiration of such three-Business Day period, Parent fails to make a proposal to adjust the terms and conditions of this Agreement that the Board of Directors of the Company determines in good faith (after consultation with its financial advisors) to be at least as favorable as the Superior Proposal. (d) ~~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)

Common use of No Solicitation; Other Offers Clause in Contracts