No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the Company shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Safeguard Scientifics Inc Et Al), Agreement and Plan of Merger and Reorganization (Lipson David S), Agreement and Plan of Merger and Reorganization (Integrated Systems Consulting Group Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly not, nor shall it permit any of its subsidiaries to, or indirectly, and shall not authorize or permit any subsidiary director, officer or employee of the Company or any Representative of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of the Acquired Corporations its subsidiaries to, directly or indirectly toindirectly, (i) solicit, initiateinitiate or encourage, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action that could reasonably be expected knowingly to lead to an Acquisition Proposalfacilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information regarding with respect to, or otherwise cooperate in any of the Acquired Corporations to way with, any Person in connection with or in response to an Acquisition Takeover Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition each case other than a Takeover Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transactionmade by Parent; provided, however, that at any time prior to obtaining the approval of this Agreement by the Required Company Shareholder VoteStockholder Approval, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes may, in good faith, based upon the advice of its outside legal counsel, response to a bona fide written Takeover Proposal that such action is required in order for the Board of Directors of the Company determines in good faith is reasonably likely to comply with its fiduciary obligations result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to the Company's shareholders under applicable law, lead to a Superior Proposal (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Personas defined below), and the Company receives which Takeover Proposal was unsolicited and did not otherwise result from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the foregoingCompany and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, the Company shall (i) provide Parent with at least twenty-four (24) hours provided that all such information is provided on a prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected or substantially concurrent basis to consider a Superior Offer Parent, and (iiy) not recommend a Superior Offer to participate in discussions or negotiations with the person making such Takeover Proposal (and its shareholders for a period of not less than the greater of two (2representatives) business days or forty-eight (48) hours after Parent's receipt of a copy of regarding such Superior Offer (pursuant to Section 4.3(b) below)Takeover Proposal.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Ual Corp /De/), Agreement and Plan of Merger (Us Airways Inc), Agreement and Plan of Merger (Ual Corp /De/)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectlynot, and shall not permit or cause any of its subsidiaries to, nor shall it authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations Representatives to, directly or indirectly to(except as otherwise contemplated by this Section 6.07), (i) initiate, solicit, initiateencourage (including by way of furnishing non-public information or assistance), encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action that could reasonably be expected to lead facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Proposal, (ii) furnish engage in any negotiations concerning, or provide any confidential or other nonpublic information regarding or data to, or have any discussions with, any person relating to an Acquisition Proposal, whether made before or after the date of the Acquired Corporations this Agreement, or otherwise facilitate any effort or attempt to any Person in connection with make or in response to implement an Acquisition Proposal, (iii) engage withdraw or modify in discussions with any Person with respect manner adverse to any Acquisition ProposalPurchaser, the approval or recommendation by the Board of the Offer, this Agreement, or the Merger, or (iv) approve, endorse cause the Company to enter into an Acquisition Agreement or approve or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition TransactionProposal; provided, however, that prior to the acceptance for payment of the Shares pursuant to the Offer (or the approval by the stockholders, if a Cash Merger pursuant to Article II of this Agreement is utilized), the Company may, and may authorize and permit the Company Representatives to, furnish or cause to be furnished confidential or other nonpublic information and may participate in such negotiations and discussions or take any other action otherwise prohibited by the Required Company Shareholder Vote, this Section 4.3(a6.07(a) with any person (unless such other action is subject to the restrictions of Section 6.07(b), in which case such other action shall not prohibit only be permitted in accordance with such restrictions) that, after the date of this Agreement, makes a bona fide unsolicited proposal to enter into a business combination with the Company from furnishing nonpublic information regarding pursuant to an Acquisition Proposal that the Acquired Corporations to, or entering into discussions with, any Person Board in response good faith reasonably determines (after having consulted with outside legal counsel and its independent financial advisor) is likely to result in a Superior Offer submitted by such Person Acquisition Proposal, but only if and to the extent that (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2i) the Board of Directors of the Company concludes determines in good faith, based upon the advice of its faith (after having consulted with outside legal counsel, ) that such action is required necessary in order for the Board of Directors of the Company its directors to comply with its their fiduciary obligations to the Company's shareholders duties under applicable law, (3ii) prior to taking such action, the Company (A) provides advance written notice to the Parent that it has received a request for nonpublic information (including a summary of the material terms of the Acquisition Proposal) and that it intends to take such action and (B) receives from such person an executed confidentiality agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement, (iii) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to any such Personperson, the Company furnishes such nonpublic information to the Parent (to the extent that such nonpublic information has not been previously furnished by the Company to the Parent), and (iv) neither the Company nor any of its subsidiaries nor any of the Company Representatives shall have violated any of the provisions set forth in this Section 6.07. Without limiting The Company shall keep the generality Purchaser promptly and reasonably informed with respect to the status of any such request and any modifications thereto. The Company shall immediately cease and cause to be terminated any existing activities, discussions, or negotiations with any parties conducted prior to the date of this Agreement with respect to any of the foregoing. If not previously requested, the Company acknowledges and agrees also will promptly request each person that has executed prior to the date of this Agreement a confidentiality agreement in connection with its consideration of an Acquisition Proposal to return or destroy all confidential or other nonpublic information furnished to such person by the Company or on the Company’s behalf prior to the date of this Agreement. Neither the Company nor any violation of its subsidiaries shall terminate, amend, modify, or waive any provision of any of confidentiality or standstill agreement to which it is a party and shall use its commercially reasonable efforts to enforce, to the restrictions set forth in fullest extent permitted under applicable law, the preceding sentence by any Representative provisions of any such agreement, including, but not limited to, by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the Acquired Corporations, whether or not such Representative is purporting to act on behalf of terms and provisions thereof in any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Companycourt having jurisdiction. In addition to Notwithstanding the foregoing, nothing contained in this Section 6.07 shall prevent the Company shall (i) provide Parent from complying with at least twenty-four (24) hours prior notice of Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act with regard to an Acquisition Proposal or from making any meeting of disclosure to the Company's ’s stockholders if the Board of Directors at which determines in good faith (after having consulted with outside legal counsel) that such disclosure is required by law or necessary in order for the Company's Board of Directors is reasonably expected ’s directors to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)comply with their fiduciary duties under applicable law.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Main Street Acquisition CORP), Agreement and Plan of Merger (Main Street Restaurant Group, Inc.), Agreement and Plan of Merger (Main Street Restaurant Group, Inc.)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 8its terms, the Company shall agrees that it will not and will not permit any of its Subsidiaries, or any of its or their officers, directors, employees, representatives, agents, or Affiliates, including, without limitation, any investment banker, attorney or accountant retained by the Company or any of its Subsidiaries (collectively, “Representatives”) to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) initiate, solicit, initiate, encourage or induce otherwise facilitate (including by way of furnishing information or otherwise), any inquiries or the making, submission or announcement making of any Acquisition Proposal proposal or take any action offer that could constitutes, or may reasonably be expected to lead to an Acquisition ProposalProposal (as defined below), or (ii) furnish any information regarding any of the Acquired Corporations to enter into or maintain or continue discussions or negotiate with any Person in connection with furtherance of such inquiries or in response to obtain an Acquisition Proposal, or (iii) engage in discussions with any Person with respect to agree to, approve, recommend, or endorse any Acquisition Proposal, (iv) approveor resolve, endorse agree or recommend publicly propose to take any Acquisition Proposal or (v) enter into such action and the Company shall promptly notify Acquiror of any letter of intent or similar document such inquiries and proposals received by the Company or any Contract contemplating of its Subsidiaries or otherwise Representatives, relating to any Acquisition Transaction; of such matters, provided, however, that at any time prior to the approval of this Agreement by the Required Company Shareholder Requisite Stockholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding Board (and the Acquired Corporations toCompany Special Committee) may, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither written Acquisition Proposal that the Company nor any Representative of any of Board (upon the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors recommendation of the Company concludes Special Committee) determines, in good faith, based upon the advice of its after consultation with outside legal counselcounsel and financial advisors, that such action is required in order for the Board of Directors of the Company constitutes, or could reasonably be expected to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information lead to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Persona Superior Proposal, and the Company receives which Acquisition Proposal did not result from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition 5.3(a), (x) provide access or furnish information with respect to the foregoingCompany and its Subsidiaries to the Person making such Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement and (y) engage in discussions or negotiations with the Person making such Acquisition Proposal (and its representatives) regarding such Acquisition Proposal; provided further, however, that, subject to the right of the Company to withhold information where such disclosure would violate or prejudice the rights of its or its Subsidiaries’ clients, jeopardize the attorney-client privilege of the Company or its Subsidiaries or contravene any law or binding agreement entered into prior to the date of this Agreement, the Company shall (i) promptly provide Parent with at least twentyto Acquiror any non-four (24) hours prior notice public information that is provided to the Person making such Acquisition Proposal or its representatives which was not previously provided to Acquiror. The Company shall also, within one Business Day, notify Acquiror of the receipt of any meeting Acquisition Proposal and the material terms and conditions thereof. Further, the Company shall promptly keep Acquiror advised on a substantially current basis of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected any developments relating to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of any such Superior Offer (pursuant to Section 4.3(b) below)Acquisition Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Digital Angel Corp), Agreement and Plan of Reorganization (Applied Digital Solutions Inc), Agreement and Plan of Reorganization (Applied Digital Solutions Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, Neither the Company nor any of its subsidiaries shall, nor shall not it authorize any of its officers, directors, employees, agents, investment bankers, attorneys, financial advisors or other representatives retained by it or any of its subsidiaries (collectively, "Company Representatives") to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicitsolicit or initiate the submission of, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as defined in Section 4.02(c)), (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action intended to facilitate any inquiries or the making of any proposal that could constitutes or would reasonably be expected to lead to to, an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with Proposal or in response to an Acquisition Proposal, (iii) engage in discussions with enter into any Person agreement with respect to any Acquisition Proposalto, (iv) approveagree to, endorse approve or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth Proposal. Nothing in this Section 4.3, (24.02(a) shall prevent the Board of Directors of the Company concludes (or any committee thereof) from considering, negotiating, discussing, approving and recommending to the stockholders of the Company a bona fide Acquisition Proposal not solicited in good faithviolation of this Agreement, based upon the advice of its outside legal counsel, that such action is required in order for provided the Board of Directors of the Company determines in good faith, based upon advice of outside legal counsel, that it is required to comply with do so in order to discharge properly its fiduciary obligations duties. Nothing contained in this Section 4.02(a) shall prevent the Board of Directors of the Company from taking and disclosing to the Company's shareholders stockholders a position with regard to a tender offer or exchange offer contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act and making such disclosure to the stockholders of the Company as may be required under applicable law; provided, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, that the Company gives Parent written notice Board of the identity Directors of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting not recommend that the stockholders of the Company's Company tender their shares of Company Common Stock in connection with such tender or exchange offer unless the Board of Directors at which of the Company's Board Company determines in good faith, based upon advice of Directors outside legal counsel, that making such recommendation is reasonably expected required in order to consider a Superior Offer and (ii) not recommend a Superior Offer to discharge properly its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)fiduciary duties.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Safeway Inc), Agreement and Plan of Merger (Vons Companies Inc), Agreement and Plan of Merger (Safeway Inc)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or the earlier termination of this Agreement pursuant to Section 8in accordance with its terms, the Company shall not directly or indirectlywill not, and shall will not authorize or permit any subsidiary of the Company its Subsidiaries or any Representative of any of the Acquired Corporations directly its or indirectly their respective directors, officers, investment bankers, affiliates, representatives and agents to, (i) solicit, initiate, or knowingly encourage or induce the making(including by way of furnishing non-public information), submission or announcement of any Acquisition Proposal or take any other action to facilitate, any inquiries or proposals that constitute, or could reasonably be expected to lead to an to, any Company Acquisition Proposal, or (ii) furnish engage in, or enter into, any information regarding negotiations or discussions concerning any of the Acquired Corporations to any Person in connection with or in response to an Company Acquisition Proposal. Notwithstanding the foregoing, (iii) engage in discussions the event that, notwithstanding compliance with any Person with respect to any Acquisition Proposalthe preceding sentence, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors receipt of the Company concludes stockholder approval, (x) the Company receives a Company Acquisition Proposal that the board of directors of the Company determines in good faith, based upon the advice of faith (after consultation with its outside legal counsel, and financial advisors) is or may reasonably be expected to lead to a Company Superior Proposal that such action is required in order for the Board of Directors of was not solicited by the Company to comply with its fiduciary obligations to the Company's shareholders under applicable lawor otherwise obtained in violation of this SECTION 6.3, and (3y) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, after the Company gives the Parent written notice of the identity of such Person and of the Company's its intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Persondo so, the Company furnishes may participate in discussions regarding such nonpublic Company Acquisition Proposal and provide confidential information to Parent (to the extent such nonpublic information has not been previously furnished by concerning the Company in order to Parent). Without limiting the generality of the foregoing, the Company acknowledges be informed and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute make a breach of this Section 4.3 by the Companydetermination with respect thereto. In addition to the foregoingsuch event, the Company shall (i) provide promptly inform Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board material terms and conditions of Directors at which such Company Acquisition Proposal, including the Company's Board identity of Directors is reasonably expected to consider a Superior Offer and the Person making such Company Acquisition Proposal, (ii) not recommend a Superior Offer promptly keep Parent informed of the status including any material change to its shareholders for a period the terms of not less than any such Company Acquisition Proposal, and (iii) promptly deliver to Parent copies of all confidential information regarding the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of Company delivered by the Company to any third party in connection with such Superior Offer (pursuant to Section 4.3(b) below).Company Acquisition Proposal. As used herein, the term "COMPANY ACQUISITION 43
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Divine Inc), Agreement and Plan of Merger (Open Market Inc), Agreement and Plan of Merger (Open Market Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not, and shall cause its Subsidiaries not to, and will use its reasonable best efforts to see that its officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives (collectively, "Representatives") do not, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, : (i) solicit, initiate, encourage or induce knowingly encourage, or take any action to facilitate the making, submission or announcement making of any Acquisition Proposal (as defined in Section 7.1(d)) or take any action that could reasonably be expected to lead to an Acquisition Proposal, inquiry with respect thereto; (ii) furnish enter into any information regarding any of the Acquired Corporations agreement with respect to any Person in connection with or in response to an Acquisition Proposal, ; or (iii) engage in discussions with or negotiations with, or afford access to or provide any nonpublic information or data relating to the Company or its Subsidiaries to any Person with respect relating to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating cooperate with, or assist or participate in, facilitate or knowingly encourage an effort or attempt by any Person to do or seek any Acquisition Transactionof the foregoing; provided, however, that prior in the event an unsolicited written Acquisition Proposal for the Company or any of its Subsidiaries is received by the Company not in violation of this Section 7.1(a), the Company may (X) furnish confidential information with respect to the approval of this Agreement by Company and its Subsidiaries to the Required Company Shareholder VotePerson making such Acquisition Proposal and the Person's Affiliates and representatives pursuant to a customary confidentiality agreement and (Y) participate in discussions and engage in negotiations with the Person and the Person's Affiliates and representatives regarding such Acquisition Proposal, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3an unsolicited written Acquisition Proposal if, (2) but only if, the Board of Directors of the Company Company, or the Special Committee, concludes in good faith, based upon faith and on the basis of (1) advice of its outside legal counsel, from financial advisors that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations Acquisition Proposal involves consideration to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and holders of the Company's intention Common Stock which is reasonably likely to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and result in a Superior Proposal (4as defined in Section 7.1(d) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions Merger set forth in this Agreement and (2) consultation with independent outside counsel that the preceding sentence by any Representative of any failure to discuss, negotiate and consider such Acquisition Proposal could constitute a violation of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting fiduciary duties of the Company's Board of Directors at which Directors, or its Special Committee, under applicable Law; and provided, further, that the Company shall notify Parent promptly in writing of any inquiries, expressions of interest, proposals or offers received by the Company or any of the Company's Board representatives relating to any Acquisition Proposal or possibility or consideration of Directors making an Acquisition Proposal indicating, in connection with such notice, the terms and conditions of any such Acquisition Proposal and, if the Acquisition Proposal is reasonably expected formally made, the name of the Person making the Acquisition Proposal. The Company hereby agrees to consider a Superior Offer and (ii) not recommend a Superior Offer furnish promptly to its shareholders for a period Parent copies of not less than any confidential information provided to the greater Person making any such Acquisition Proposal, or itemize such confidential information to the extent same has previously been given or made available to Parent. In addition, the Company hereby agrees that it will take the necessary steps promptly to inform each Person making an Acquisition Proposal of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to the obligations undertaken in this Section 4.3(b) below)7.1.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Deere & Co), Agreement and Plan of Merger (FRS Capital Co LLC), Agreement and Plan of Merger (Richton International Corp)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectlynot, and nor shall not it authorize or permit any subsidiary of the Company its Subsidiaries or any Representative of their respective directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) retained by it or any of the Acquired Corporations its Subsidiaries to, directly or indirectly tothrough another person, (i) solicit, initiateinitiate or knowingly encourage, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action that designed to, or which could reasonably be expected to lead to an Acquisition Proposalto, facilitate, any Takeover Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposalperson any information, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to cooperate in any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions way with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)Takeover Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is agreed that any violation of any of the restrictions set forth in the preceding sentence by any Representative of the Company or any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, its Subsidiaries shall be deemed to constitute a breach of this Section 4.3 4.02(a) by the Company. In addition The Company shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of Shareholder Approval, in response to a bona fide written Takeover Proposal that the Company's Board of Directors at which of the Company's Board Company reasonably determines (after consultation with outside counsel and a financial advisor of Directors nationally recognized reputation) constitutes or is reasonably expected likely to consider lead to a Superior Offer Proposal, and which Takeover Proposal was not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of this Section 4.02(a), the Company may, subject to compliance with Section 4.02(c), (x) furnish information with respect to the Company and its Subsidiaries to the person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive to such person than the confidentiality provisions of the Confidentiality Agreement, provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person, and (iiy) not recommend a Superior Offer to participate in discussions or negotiations with the person making such Takeover Proposal (and its shareholders for a period of not less than the greater of two (2Representatives) business days or forty-eight (48) hours after Parent's receipt of a copy of regarding such Superior Offer (pursuant to Section 4.3(b) below)Takeover Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Boston Scientific Corp), Agreement and Plan of Merger (Boston Scientific Corp), Agreement and Plan of Merger (Boston Scientific Corp)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly not, nor shall it authorize or indirectlypermit any of its Subsidiaries or any of their respective directors or officers or employees, and shall not authorize any investment banker, financial advisor, attorney, accountant or permit any subsidiary of the Company other advisor, agent or representative (collectively, “Representatives”) retained by it or any Representative of any of the Acquired Corporations directly or indirectly its Subsidiaries to and shall use its reasonable best efforts to cause such Representatives not to, (i) solicit, initiate, initiate or knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action that could reasonably be expected designed to lead to an Acquisition knowingly facilitate the submission of any Takeover Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding or furnish any information regarding any of the Acquired Corporations to any Person (other than Parent or its Representatives or the Company’s Representatives) any confidential information with respect to, or otherwise actively cooperate in connection with any way with, any Takeover Proposal or in response to an Acquisition Proposal, (iii) engage in discussions with waive, terminate or modify any Person with respect to provision of any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent contractual “standstill” or similar document obligation of any person other than Parent. Notwithstanding the foregoing or anything else in this Agreement to the contrary, at any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that time prior to obtaining the approval of this Agreement by the Required Company Shareholder VoteApproval, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations tomay, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither bona fide written Takeover Proposal that the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, Board determines (2) the Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counselcounsel and financial advisor) is or is reasonably likely to lead to a Superior Proposal and which Takeover Proposal was not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of this Section 4.02(a), that and subject to compliance with Section 4.02(c), (i) furnish confidential information with respect to the Company and its Subsidiaries to the Person making such action is required in order for the Board of Directors of Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (which shall permit the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3terms of Section 4.02(c)) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished not less restrictive to such Person by or on behalf than the provisions of the CompanyConfidentiality Agreement, and (4) provided that all such information has previously been provided to Parent or is provided to Parent prior to furnishing any such nonpublic information or substantially concurrent with the time it is provided to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer Person and (ii) not recommend a Superior Offer to participate in discussions and negotiations with the Person making such Takeover Proposal (and its shareholders for a period of not less than the greater of two (2Representatives) business days or forty-eight (48) hours after Parent's receipt of a copy of regarding such Superior Offer (pursuant to Section 4.3(b) below)Takeover Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Teleflex Medical Inc), Agreement and Plan of Merger (Arrow International Inc), Agreement and Plan of Merger (Teleflex Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectly, and shall not authorize or knowingly permit any subsidiary of the Company other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage encourage, induce or induce facilitate the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction, it being understood and agreed that informing any Person as to the existence of this provision in response to any unsolicited Acquisition Proposal, proposal or inquiry shall not constitute or be deemed to be a violation of the foregoing; provided, however, that prior to the approval adoption of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, entering into a confidentiality agreement with, or entering into discussions with, any Person in response to an unsolicited Acquisition Proposal that the Company’s Board of Directors determines in good faith constitutes or would reasonably be expected to lead to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated breached or taken any action inconsistent with any of the restrictions provisions set forth in this Section 4.3, (2) the Board board of Directors directors of the Company concludes in good faith, based upon after having taken into account the written advice of its outside legal counsel, that such action is required in order for the Board board of Directors directors of the Company to comply with its fiduciary obligations to the Company's ’s shareholders under applicable law, (3) at least two business days prior to furnishing any such nonpublic information to, entering into a confidentiality agreement with, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's ’s intention to furnish nonpublic information to, entering into a confidentiality agreement with, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the CompanyCompany substantially similar to the confidentiality provisions contained in that certain letter agreement dated May 25, 2007, as amended on June 19, 2007, between the Company and Parent, and (4) prior to furnishing any such information that is material nonpublic information to such Person, the Company furnishes such material nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation action inconsistent with of any of the restrictions provisions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (WEB.COM, Inc.), Agreement and Plan of Merger and Reorganization (Website Pros Inc), Agreement and Plan of Merger and Reorganization (Website Pros Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectly, and shall not authorize or permit any subsidiary either of the Company its Subsidiaries or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage intentionally encourage, intentionally induce or induce intentionally facilitate the making, submission or announcement of any Acquisition Proposal (whether by amending, or granting any waiver under, the Company Rights Agreement or otherwise) or take any action that could would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; providedPROVIDED, howeverHOWEVER, that prior to the approval of Acceptance Date (and subject to the Company's right to terminate this Agreement by the Required Company Shareholder Votepursuant to Section 8.1(h)), this Section 4.3(a5.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions or negotiations with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither such Superior Offer shall not have resulted directly or indirectly from any breach of this Section 5.3 or from any action taken by the Company nor or any Representative of its Representatives with the intent of circumventing any of the Acquired Corporations shall have violated any of the restrictions provisions set forth in this Section 4.35.3, (2) the Board board of Directors directors of the Company concludes in good faith, based upon after having taken into account the advice of its outside legal counsel, that the failure to take such action is required in order for would be inconsistent with the Board of Directors fiduciary obligations of the Company to comply with its fiduciary obligations Company's board of directors to the Company's shareholders stockholders under applicable lawLegal Requirements, (3) at least one business day prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and provisions (4including "standstill" provisions) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not no less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)41.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Gilead Sciences Inc), Agreement and Plan of Merger (Triangle Pharmaceuticals Inc), Agreement and Plan of Merger (Triangle Pharmaceuticals Inc)
No Solicitation. (a) From and after the date of this Agreement hereof until the --------------- earlier of the Effective Time or the termination of this Agreement pursuant to Section 8in accordance with its terms, the Company Xoom shall not not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, Xoom or any of its Subsidiaries to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) take any action to solicit, initiate, encourage or induce knowingly facilitate any Material Transaction Proposal (as defined below) or the making, submission or announcement of any Acquisition a Material Transaction Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding, or furnish to any person any information regarding any with respect to, a Material Transaction Proposal; provided that, prior to obtaining the affirmative vote of the Acquired Corporations holders -------- of a majority of the outstanding shares of common stock of Xoom to any Person in connection adopt the Xenon 2 Merger Agreement (the "Xoom Stockholder Approval" and, together with or the ------------------------- Xenon 2 Stockholder Approval, the "Stockholder Approvals"), in response to an Acquisition --------------------- unsolicited bona fide Takeover Proposal, (iii) engage in discussions with any Person with respect to any Acquisition ProposalXoom may, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) extent that the Board ---- ---- of Directors of the Company concludes Xoom determines in good faith, faith based upon on the advice of its outside legal counsel, counsel that such action is required in order for the Board of Directors of the Company to comply with its their fiduciary obligations to the Company's shareholders duties under applicable law, (3A) prior furnish information with respect to furnishing Xoom and its Subsidiaries to the person making such Takeover Proposal and its representatives and discuss such information with such person and its representatives and (B) participate in negotiations regarding such Takeover Proposal. Xoom will promptly notify NBC of receipt of any such nonpublic request for information to, or entering into discussions with, such Personany Material Transaction Proposal, the Company gives Parent written notice material terms and conditions of such request or Material Transaction Proposal and the identity of the person making any such Person request or Material Transaction Proposal, and will keep NBC fully informed on a current basis of the Company's intention status and details of any such request or Material Transaction Proposal, provided that, prior to furnish nonpublic providing any information to, to any -------- Person or enter into discussions with, such participating in negotiations with any Person, and the Company receives from such Person Xoom shall have received an executed confidentiality agreement containing customary limitations on the use agreement. Xoom will immediately cease and disclosure of all nonpublic written cause to be terminated any existing activities, discussions and oral information furnished negotiations conducted heretofore with respect to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Material Transaction Proposal.
Appears in 3 contracts
Samples: Agreement and Plan (Xoom Inc), Agreement and Plan of Contribution (General Electric Co), Agreement and Plan (Xoom Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time Except as permitted by Section 4.4(b), Section 4.4(e) or termination of this Agreement pursuant to Section 85.2, the Company shall not (and shall not publicly propose to), and shall ensure that the other Acquired Companies do not (and do not publicly propose to), and shall use reasonable best efforts to cause the Company’s and the other Acquired Companies’ respective Representatives not to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, : (i) solicit, initiate, knowingly encourage or knowingly induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, Inquiry; (ii) furnish or otherwise provide access to any information regarding any of the Acquired Corporations Companies to any Person in connection with or in response to an Acquisition Proposal, Proposal or Acquisition Inquiry; (iii) enter into, continue or engage in discussions or negotiations with or knowingly cooperate with, any Person (other than Parent, its Affiliates and its and their Representatives) with respect to any Acquisition Proposal, Proposal or Acquisition Inquiry; or (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent intent, memorandum of understanding, agreement in principle or similar document or any Contract contemplating constituting or otherwise relating to an Acquisition Transaction (other than a confidentiality agreement entered into pursuant to, and in compliance with, clause (iv)(B) of Section 4.4(b) and any Acquisition Transactionrelated “clean team” agreement whose terms are comparable with the Clean Team Agreement, with such changes in such clean team agreement as are necessary to reflect the identity of the other Person and the nature of its business); provided, however, that nothing in this Section 4.4(a) shall prohibit the Company, any other Acquired Company or any of their respective Representatives (in the case of Representatives, to the extent they are acting at the direction of the Company or any Acquired Company) from contacting in writing any Person who, following the date of this Agreement and prior to the approval adoption of this Agreement by the Required Company Shareholder Stockholder Vote, makes an unsolicited, bona fide written Acquisition Proposal or Acquisition Inquiry to the Company that did not result from a material breach of this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to4.4 or Section 5.2, or entering into discussions with, any Person in response solely to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, ask such Person, and the Company receives to request from such Person an executed confidentiality agreement containing customary limitations on a written response to, a question or questions for the use sole purpose of clarifying (and disclosure not for the purpose of all nonpublic engaging, directly or indirectly, in any discussions or negotiations regarding) the written and oral information furnished to terms of such Person by Acquisition Proposal or on behalf of the CompanyAcquisition Inquiry; provided, and (4) further, that prior to furnishing sending any such nonpublic information written communication to such Person, the Company furnishes such nonpublic information shall deliver to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)written communication.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Lockheed Martin Corp), Agreement and Plan of Merger (Aerojet Rocketdyne Holdings, Inc.), Agreement and Plan of Merger
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Article VII, Company shall not, nor shall it authorize or permit the Company shall not Subsidiaries or any of its or their respective officers, directors, affiliates or employees or any investment banker, attorney, advisor or other agent or representative retained by any of them to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any Acquisition Proposal Proposal, (ii) continue or participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that could constitutes, or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions with any Person with respect to any Acquisition Proposal, except as necessary to ascertain the terms of and understand any Acquisition Proposal and to decline to engage or participate in such discussions by referring to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal Proposal, except as specifically provided in Section 5.2(c), or (v) enter into any letter of intent or similar document or any other Contract contemplating or otherwise relating to any Acquisition TransactionProposal; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) 5.3 shall not prohibit the Company from engaging in discussions or negotiations regarding or furnishing nonpublic information regarding to the Acquired Corporations toparty making an unsolicited, written, bona fide Acquisition Proposal so long as, and only to the extent that, (A) Company’s Board of Directors in good faith after consultation with its outside financial and legal advisors, concludes that such Acquisition Proposal is, or entering into discussions withwould reasonably be expected to result in, any Person in response to a Superior Offer submitted by such Person Proposal, (and not withdrawn) if (1B) neither the Company nor any Representative representative of any of Company or the Acquired Corporations Company Subsidiaries acting under its authority shall have violated any of the restrictions set forth in this Section 4.35.3, (2C) the Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its outside financial and legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders ’s stockholders under applicable lawLegal Requirements, (3D) at least two business days prior to entering into discussions or negotiations (other than preliminary discussions permitted above) with, or furnishing any such nonpublic information to, or entering into discussions withsuch party, such Person, the Company gives Parent written notice of the identity of such Person Person, entity or group and all of the material terms and conditions of such Acquisition Proposal and of the Company's ’s intention to furnish nonpublic information to, or enter into discussions with, take action with respect to such Person, entity or group, and the Company receives from such Person or group an executed confidentiality agreement containing customary limitations on terms no less favorable to Company as the use Confidentiality Agreement, (E) Company gives Parent at least two business days advance notice of its intent to furnish such nonpublic information or enter into such discussions, and disclosure of all nonpublic written and oral (F) contemporaneously with furnishing any such information furnished to such Person by or on behalf of the Companygroup, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Company shall, and shall cause its respective officers, directors, controlled affiliates or employees or any investment banker, attorney, advisor or other agent or representative retained by any of them to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is understood that any violation of any of the restrictions set forth in the preceding sentence this Section 5.3 by any Representative officer, director or controlled affiliate of Company or any Company Subsidiaries or any investment banker, attorney, advisor or other agent or representative of the Acquired Corporations, whether Company or not such Representative is purporting to act on behalf of any of the Acquired Corporations, Company Subsidiaries shall be deemed to constitute be a breach of this Section 4.3 5.3 by Company. In addition to the Companyobligations of Company set forth in this Section 5.3, Company shall, as promptly as practicable, and in any event within 24 hours, advise Parent orally and in writing of any Acquisition Proposal, request for information which Company reasonably believes would lead to an Acquisition Proposal or any inquiry with respect to or which could reasonably be expected to lead to any Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, the identity of the Person or group making any such Acquisition Proposal, request or inquiry and copies of all written materials sent or provided to Company by or on behalf of any Person or group or provided to such Person or group by or on behalf of Company after the date of this Agreement. Company shall keep Parent informed in all material respects of the status and details (including material amendments or proposed amendments) of any such Acquisition Proposal, request or inquiry. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours two business days prior written notice of any a meeting of the Company's ’s Board of Directors at which the Company's ’s Board of Directors is reasonably expected to consider a Superior Offer and (ii) not an Acquisition Proposal or recommend a Superior Offer Proposal to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of stockholders and, together with such notice, a copy of the documentation relating to such Superior Offer (pursuant to Section 4.3(b) below)Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Vitalstream Holdings Inc), Agreement and Plan of Merger (Internap Network Services Corp), Agreement and Plan of Merger (Vitalstream Holdings Inc)
No Solicitation. (a) From In consideration of the date expenses to be incurred by each of the parties hereto in negotiating toward this Agreement until the earlier and in conducting its due diligence investigation, each of the Effective Time or termination of this Agreement pursuant to Section 8parties hereto shall not, the Company shall not directly or indirectly, and shall not authorize through any officer, director, employee, financial advisor, representative or permit any subsidiary agent of the Company or any Representative of any of the Acquired Corporations directly or indirectly tosuch party, (i) solicit, initiate, or encourage any inquiries or induce the makingproposals that constitute, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale or transfer of substantial assets, sale of any shares of capital stock (including without limitation by way of a tender offer), acquisition of shares of capital stock or assets, or similar transaction involving it or any of its subsidiaries, other than the Transactions (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"), or (ii) furnish engage in negotiations or discussions concerning, or provide any non-public information regarding any of the Acquired Corporations to any Person in connection with person or in response to an Acquisition Proposalentity relating to, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or agree to or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition TransactionProposal; providedPROVIDED, howeverHOWEVER, that prior to the approval of this Agreement by the Required Company Shareholder Vote, nothing contained in this Section 4.3(a4.16(a) shall not prohibit prevent any of the Company parties hereto or its respective Board of Directors, from (A) furnishing nonpublic information regarding the Acquired Corporations tonon-public information, or entering into discussions or negotiations, with, any Person person or entity in response to a Superior Offer submitted connection with an unsolicited bona fide written Acquisition Proposal by such Person (person or entity or agreeing to or recommending an unsolicited bona fide written Acquisition Proposal to its stockholders, if and not withdrawn) if only to the extent that (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes such party believes in good faithfaith (after consultation with its advisors) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and, based upon after taking into account the advice strategic benefits anticipated to be derived from the Acquisition Proposal, would, if consummated, result in a transaction more favorable to such party over the long term than the transaction contemplated by this Agreement, and such Board of its Directors determines in good faith after receipt of an opinion from outside legal counsel, counsel to the effect that such action is required in order likely necessary for the such Board of Directors of the Company to comply with its fiduciary obligations duties to the Company's shareholders stockholders under applicable law, law and (32) prior to furnishing any such nonpublic non-public information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, person or enter into discussions withentity, such Person, and the Company Board of Directors receives from such Person person or entity an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished with terms no more favorable to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth party than those contained in the preceding sentence by any Representative of any of Confidentiality Agreement; or (B) complying with rule 14e-2 promulgated under the Acquired Corporations, whether or not such Representative is purporting Exchange Act with regard to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)an Acquisition Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Investment Agreement (Simione Central Holdings Inc), Agreement and Plan of Merger (Mestek Inc), Agreement and Plan of Merger and Investment Agreement (MCS Inc)
No Solicitation. Seller will not (and it will use its best efforts to assure that its officers, directors, employees, agents and affiliates do not on its behalf) (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant take any action to Section 8, the Company shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage seek, or induce affirmatively support any inquiry, proposal or offer from, any * Certain information on this page has been omitted and filed separately with the makingSEC. Confidential treatment has been requested with respect to the omitted portions. corporation, submission partnership, person or announcement other entity or group (other than Buyer) relating to any acquisition of any Acquisition Proposal the Business or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to Assets, other than the marketing, sale and distribution of Product Inventory and use of Raw Materials in the ordinary course consistent with past practices (any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal such proposed transaction being a “Third Party Acquisition”); or (vb) enter into participate in any letter of intent discussions or similar document negotiations with, or provide any Contract contemplating non-public information to, any corporation, partnership, person or otherwise other entity or group (other than Buyer) relating to any proposed Third Party Acquisition. Seller shall immediately terminate any such negotiations in progress as of the Effective Date. In no event will Seller accept or enter into an agreement concerning any such Third Party Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any termination of the Acquired Corporations shall have violated any of the restrictions set forth in Agreement pursuant to Article 12. Notwithstanding this Section 4.3provision, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, nothing herein shall be deemed to constitute a breach in any way restrict or limit the right of this Section 4.3 by Seller to engage in discussions, negotiations, furnishing of information or any other activities relating to or in support of transactions involving the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice acquisition or sale of Seller and/or any meeting other product lines or businesses of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less Seller other than the greater of two (2) business days Business or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)the Assets, so long as this Agreement shall remain in full force and effect and shall remain binding on the parties hereto.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Biotech Spinco, Inc.), Asset Purchase Agreement (PDL Biopharma, Inc.), Asset Purchase Agreement (Facet Biotech Corp)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Such Stockholder shall not, the Company nor shall not directly or indirectly, and shall not authorize or such Stockholder knowingly permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, its Stockholder Representatives to (i) solicit, initiate, intentionally encourage or induce the makingintentionally facilitate any inquiry, submission offer or announcement of any Acquisition Proposal proposal with respect to, or take any action that could constitutes or would reasonably be expected to lead to to, an Acquisition Alternative Proposal, (ii) furnish enter into, continue or otherwise engage or participate in any information regarding any of the Acquired Corporations to any Person in connection discussions or negotiations with or in response respect to an Acquisition Proposal, (iii) engage in discussions with Alternative Proposal or provide nonpublic information to any Person with respect to, or with the intention to any Acquisition solicit, an Alternative Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (viii) enter into any letter of intent or similar document agreement in principle or any Contract contemplating or otherwise relating to agreement providing for any Acquisition TransactionAlternative Proposal; provided, however, that prior notwithstanding anything in this Agreement to the approval of this Agreement by the Required Company Shareholder Votecontrary, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither if the Company nor receives an Alternate Proposal that did not result from any Representative breach of any this Section 3(d) by such Stockholder or to such Stockholder’s knowledge Section 4.02 of the Acquired Corporations shall have violated Tender Offer Agreement in any of material respect and that the restrictions set forth Company Board has determined constitutes a Qualifying Proposal or could reasonably be expected to result in this Section 4.3a Qualifying Proposal, then such Stockholder and its Stockholder Representatives may (x) furnish nonpublic information to the third-party making such Alternative Proposal if such third-party has executed a confidentiality agreement with the Company and/or (y) engage in discussions or negotiations with such third-party with respect to the Alternative Proposal, (2) nothing contained in this Agreement shall prohibit such Stockholder or any of its Stockholder Representatives from making any public disclosures in respect of an Alternative Proposal if such Person determines in good faith that the Board failure to make such disclosure or taking any actions which would be inconsistent with such Person’s exercise of Directors its fiduciary duties. “Stockholder Representatives” means, with respect to a Stockholder, such Stockholder’s directors, partners, officers, employees, accountants, consultants, legal counsel, investment bankers, financial advisors, brokers, finders or agents or other representatives of such Stockholder except that any Person who is a member of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order Board shall not be a “Stockholder Representative” for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)purpose hereunder.
Appears in 3 contracts
Samples: Agreement (Global Aviation Leasing Co., Ltd.), Agreement to Tender (Avolon Holdings LTD), sec.report
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not not, directly or indirectly, and shall not authorize or permit through any subsidiary officer, director, employee, representative or agent of the Company or any Representative of its Subsidiaries, and shall not permit any such officer, director, employee, representative or agent to, solicit or encourage the initiation of (including by way of furnishing information) any inquiries or proposals regarding, or participate in negotiations or discussions concerning any merger, sale of assets, sale of shares of capital stock (including without limitation by way of a tender offer) or similar transactions involving the Company or any Subsidiaries of the Company that if consummated would constitute an Alternative Transaction (as defined in Section 7.1) (any of the Acquired Corporations directly foregoing inquiries or indirectly toproposals being referred to herein as an "ACQUISITION PROPOSAL"). Upon the execution of this Agreement, the Company shall immediately cease any discussions or negotiations with any person, entity or group (other than Parent or any of its affiliates or representatives) concerning any such transaction or any Acquisition Proposal that are continuing on the date hereof and thereafter shall seek to have returned to the Company any confidential information that has been provided in any such discussions or negotiations. Nothing in this section shall prevent the Board from (i) solicit, initiate, encourage or induce the making, submission or announcement of any furnishing information to a third person which has made a BONA FIDE Acquisition Proposal or take any action that could the Board reasonably be expected determines is likely to lead to an Acquisition Proposala Superior Proposal (as defined below) not solicited in violation of this Agreement, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposalprovided that, (iii) engage in discussions with any Person with respect to any person that is not currently party to a confidentiality agreement with the Company, such person has executed an agreement with confidentiality, standstill and other provisions substantially similar to those then in effect between the Company and Parent, or (ii) subject to compliance with the other terms of this Section 5.2, considering and negotiating a bona fide Acquisition ProposalProposal that is a Superior Proposal not solicited in violation of this Agreement; PROVIDED, HOWEVER, that, as to each of clauses (i) and (ii), (ivx) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that such actions occur at a time prior to the approval of this Agreement by consummation (or, if the Required Company Shareholder VoteOffer is consummated and extended, this Section 4.3(athe initial consummation) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, Offer and (2y) the Board of Directors of the Company concludes determines in good faith, faith (based upon on the advice of its outside legal financial advisor and counsel, ) that such action it is required to take such actions in order to discharge properly its fiduciary duties. For purposes of this Agreement, a "SUPERIOR PROPOSAL" means any proposal made by a third person to acquire, directly or indirectly, for consideration consisting of cash and/or securities, all of the Board of Directors equity securities of the Company entitled to comply with its fiduciary obligations to vote generally in the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, election of directors or entering into discussions with, such Person, all or substantially all the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf assets of the Company, if, and (4) prior to furnishing any such nonpublic information to such Persononly if, the Company furnishes such nonpublic information to Parent Board reasonably determines (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges after consultation with its financial advisor and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall counsel) (i) provide that the proposed transaction would be more favorable from a financial point of view to its stockholders than the Offer and the Merger and the transactions contemplated by this Agreement taking into account at the time of determination any changes to the terms of this Agreement which as of that time had been proposed by Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period that the person or entity making such Acquisition Proposal is capable of not less than consummating such Acquisition Proposal (based upon, among other things, the greater availability of two (2) business days or forty-eight (48) hours after Parent's receipt financing and the degree of a copy certainty of obtaining financing, the expectation of obtaining required regulatory approvals and the identity and background of such Superior Offer (pursuant to Section 4.3(b) belowperson).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Shorewood Packaging Corp), Agreement and Plan of Merger (International Paper Co /New/), Agreement and Plan of Merger (International Paper Co /New/)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectlynot, and nor shall not it authorize or permit any subsidiary of the Company its Subsidiaries or any Representative of their respective directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, "Representatives") retained by it or any of the Acquired Corporations its Subsidiaries to, directly or indirectly tothrough another person, (i) solicit, initiateinitiate or knowingly encourage, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action that designed to, or which could reasonably be expected to lead to an Acquisition Proposalto, facilitate, any Takeover Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposalperson any information, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to cooperate in any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions way with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)Takeover Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is agreed that any violation of any of the restrictions set forth in the preceding sentence by any Representative of the Company or any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, its Subsidiaries shall be deemed to constitute a breach of this Section 4.3 4.02(a) by the Company. In addition The Company shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of Shareholder Approval, in response to a bona fide written Takeover Proposal that the Company's Board of Directors at which of the Company's Board Company reasonably determines (after consultation with outside counsel and a financial advisor of Directors nationally recognized reputation) constitutes or is reasonably expected likely to consider lead to a Superior Offer Proposal, and which Takeover Proposal was not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of this Section 4.02(a), the Company may, subject to compliance with Section 4.02(c), (x) furnish information with respect to the Company and its Subsidiaries to the person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive to such person than the confidentiality provisions of the Confidentiality Agreement, provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person, and (iiy) not recommend a Superior Offer to participate in discussions or negotiations with the person making such Takeover Proposal (and its shareholders for a period of not less than the greater of two (2Representatives) business days or forty-eight (48) hours after Parent's receipt of a copy of regarding such Superior Offer (pursuant to Section 4.3(b) below)Takeover Proposal.
Appears in 3 contracts
Samples: Merger Agreement (Guidant Corp), Agreement and Plan of Merger (Guidant Corp), Agreement and Plan of Merger (Johnson & Johnson)
No Solicitation. DOCP shall not, nor shall it permit any DOCP Subsidiary, or its or any DOCP Subsidiary officers, directors, employees, agents or representatives (aincluding, without limitation, any investment banker, attorney or accountant) From the date of this Agreement until the earlier of the Effective Time to, initiate, solicit or termination of this Agreement pursuant to Section 8encourage, the Company shall not directly or indirectly, and shall not authorize any inquiries or permit the making of any subsidiary of the Company proposal with respect to an Alternative Transaction, engage in any discussions or negotiations concerning, or provide to any other person any information or data relating to it or any Representative DOCP Subsidiary for the purposes of, or otherwise cooperate in any way with or assist or participate in, facilitate or encourage, any inquiries or the making of any of the Acquired Corporations directly proposal which constitutes, or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could may reasonably be expected to lead to, a proposal to seek or effect an Acquisition ProposalAlternative Transaction, (ii) furnish or agree to or endorse any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Alternative Transaction; provided, however, that nothing contained in this Section shall prohibit DOCP or the DOCP Board from taking and disclosing to its shareholders a position as required by Exchange Act Rule 14e-2; and provided further that, prior to acceptance for payment of any DOCP Shares pursuant to the approval Offer, the DOCP Board, on behalf of this Agreement by the Required Company Shareholder VoteDOCP, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations tomay, or entering into discussions with, any Person in response to an unsolicited, bona fide Superior Proposal, furnish information or data (including confidential information or data) relating to DOCP and participate in negotiations with a person making such unsolicited Superior Offer submitted by Proposal, but only after such Person person enters into arrangements regarding confidentiality on terms at least as favorable to DOCP as the confidentiality arrangements contained herein and only in the event that (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2a) the DOCP Board of Directors of the Company concludes determines in good faith, based upon on the basis of advice of its outside legal counselindependent counsel furnished prior thereto to Buyer, that such action is legally required in order for by the Board of Directors fiduciary obligations of the Company DOCP Board and (b) DOCP advises Buyer of its intention to comply with its fiduciary obligations make such determination to do so prior thereto. DOCP shall promptly advise Buyer of, and communicate the Company's shareholders under applicable lawterms of, (3) prior to furnishing any such nonpublic information toproposal respecting an Alternative Transaction it may receive, or entering into discussions withany inquiries it receives which may reasonably be expected to lead to a proposal respecting an Alternative Transaction, such Person, the Company gives Parent written notice of and the identity of the person making such Person proposal. Prior to taking any such action, if DOCP intends to participate in any such discussion or negotiation or provide any such information or data to any such third party, it shall give reasonable notice to Buyer and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Personshall consult, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished thereafter shall continue to such Person by or on behalf of the Companyconsult, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)with Buyer. Without limiting the generality of Notwithstanding the foregoing, nothing in this Section 6.2 shall (a) permit DOCP to enter into any agreement with respect to or to facilitate an Alternative Transaction during the Company acknowledges and agrees term of this Agreement (it being understood that DOCP shall not enter into any violation agreement with any person that provides for, or in any way facilitates, the development of a proposal for an Alternative Transaction, other than a confidentiality agreement in customary form in respect of a Superior Proposal as described above) or (b) affect any other obligation of DOCP under this Agreement. "Alternative Transaction" means a transaction or series of related transactions resulting in (a) any change of control of DOCP, (b) any merger or consolidation of DOCP in which another person acquires 25% or more of the restrictions set forth in aggregate voting power of all voting securities of it or the preceding sentence by any Representative of any of the Acquired Corporationssurviving corporation, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).as the
Appears in 3 contracts
Samples: Agreement and Plan of Merger (CSX Corp), Execution Copy (Delaware Otsego Corp), Agreement and Plan of Merger (Delaware Otsego Corp)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectlynot, and nor shall not it permit any of its Affiliates to, nor shall it authorize or permit any subsidiary Affiliate, director, officer or employee of the Company or any Representative of such Affiliate or any investment banker, financial adviser, attorney, accountant or other advisor or representative of the Acquired Corporations Company or any such Affiliate to, directly or indirectly toindirectly, (i) solicit, initiateseek, initiate or encourage or induce the making(including by way of furnishing information), submission or announcement of any Acquisition Proposal or take any other action to facilitate the submission of any inquiries or the making of any proposal or offer that could constitutes, or would be reasonably be expected likely to constitute or lead to an Acquisition to, a Takeover Proposal, (ii) furnish enter into, continue or otherwise participate in any information regarding discussions or negotiations (including by way of furnishing information), or otherwise cooperate in any of the Acquired Corporations way with, or assist, participate in, facilitate or encourage, any effort or attempt by any person to any Person submit or otherwise act in connection with or in response to an Acquisition furtherance of, a Takeover Proposal, (iii) engage in discussions with agree to, approve or recommend any Person with respect to any Acquisition Takeover Proposal, or (iv) approve, endorse or recommend take any Acquisition Proposal or (v) enter into any letter other action inconsistent with the obligations and commitments of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth contained in this Section 4.34.02 provided that nothing herein shall prohibit the presentation of a Takeover Proposal to the Company Board which was not obtained or received in violation of this Section 4.02. Notwithstanding the foregoing, (2) in the event that the Company Board of Directors determines in good faith after consultation with outside counsel that the failure to do so would constitute a breach of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its Board's fiduciary obligations duties to the Company's shareholders Shareholders under applicable law, the Company Board may, in response to (3A) a Superior Proposal or (B) a bona fide Takeover Proposal that the Company Board determines in good faith is reasonably likely to lead to a Superior Proposal (a "LIKELY SUPERIOR PROPOSAL") at any time prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the acceptance for payment of shares of Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (Common Stock pursuant to the extent such nonpublic information has Offer (the "SPECIFIED DATE"), that in each case was unsolicited and did not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute otherwise result from a breach of this Section 4.3 by 4.02, and subject to compliance with Section 4.02(c): (x) furnish information with respect to the Company and its Subsidiaries to the person making such Superior Proposal or Likely Superior Proposal (and its representatives) pursuant to an appropriate and customary confidentiality and standstill agreement that is no less restrictive than the Confidentiality Agreement between Xxxxxxx Education, Inc. and the Company. In addition to , dated June 14, 2000 (the foregoing, the Company shall (iCONFIDENTIALITY AGREEMENT") provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (iiy) not recommend a Superior Offer to its shareholders for a period of not less than participate in discussions or negotiations with the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of person making such Superior Offer Proposal or Likely Superior Proposal (pursuant to Section 4.3(band its representatives) below)regarding such Superior Proposal or Likely Superior Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Pearson PLC), Execution Copy (National Computer Systems Inc), Agreement and Plan of Merger (Pn Acquisition Subsidiary Inc)
No Solicitation. (a) From During the period beginning on the date of this Agreement and continuing until the earlier of the Effective Time or and the termination of this Agreement pursuant in accordance with Section 9.1, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall instruct and cause its and its Subsidiaries’ other Representatives to, cease and cause to be terminated any discussions or negotiations with any Person that would otherwise be prohibited by this Section 87.7(a). Promptly following the execution of this Agreement, the Company shall deliver a written notice to each such Person to the effect that, subject to the provisions of this Section 7.7, the Company is ending all discussions and negotiations with such Person with respect to any Alternative Proposal, effective on and from the date of this Agreement, and the notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and/or its Subsidiaries. Subject to the provisions of this Section 7.7, during the period commencing on the date of this Agreement and continuing until the earlier to occur of the Effective Time and the Termination Date, the Company and its Subsidiaries shall not, and shall cause its and their respective Representatives not to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicitsolicit (including by way of furnishing non-public information), initiate, initiate or knowingly encourage or induce facilitate any inquiry with respect to, or the making, submission or announcement of of, any Acquisition Proposal proposal or take any action offer that could constitutes, or is reasonably be expected to lead to to, an Acquisition Alternative Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person (other than Parent or Merger Sub or their respective designees) any non-public information relating to the Company and/or its Subsidiaries, or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and/or its Subsidiaries (other than Parent or Merger Sub or their respective designees), in connection with or in response any such case relating to an Acquisition Alternative Proposal or any inquiries or the making of any proposal that could lead to an Alternative Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations regarding any Alternative Proposal with any Person, except to notify such Person with respect as to any Acquisition Proposalthe existence and content of the provisions of this Section 7.7, or (iv) approvegrant any waiver, endorse amendment or recommend release under any Acquisition standstill or confidentiality agreement (except for any portion of any such standstill or confidentiality agreement that restricts the ability of a Person to communicate an Alternative Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations toBoard), or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twentyanti-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)takeover laws.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Consolidated Communications Holdings, Inc.), Agreement and Plan of Merger (Fairpoint Communications Inc)
No Solicitation. (a) From The Company shall not, nor shall it authorize or permit any of its Subsidiaries to, and it shall cause its and its Subsidiaries’ respective Representatives not to, directly or indirectly: (i) initiate or solicit or knowingly facilitate or encourage (it being understood that providing information in the ordinary course of business consistent with past practice to categories of Persons to whom the Company routinely provides such information in the ordinary course of business consistent with past practice will not, in and of itself, constitute encouragement hereunder) any inquiry or the making of any proposal that constitutes a Takeover Proposal or (ii) continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information or data or access to its properties with respect to, or otherwise cooperate with or knowingly take any other action to facilitate any proposal that constitutes any Takeover Proposal. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal (and shall not waive or otherwise modify any existing standstill provision or confidentiality agreement that benefits the Company) and request from each Person that has executed a confidentiality agreement with the Company the prompt return or destruction of any confidential information previously furnished to such Person in connection therewith. Notwithstanding the foregoing, prior to the Acceptance Time, the Company and its Representatives, in response to a bona fide written Takeover Proposal that was made after the date of this Agreement until the earlier of the Effective Time or termination and did not result from a material breach of this Agreement pursuant to Section 8, the Company shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, constitutes a Superior Proposal or (2) the Board of Directors of the Company concludes determines in good faithfaith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) could reasonably be expected to result in a Superior Proposal, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company shall be permitted to: (A) provide access to comply with its fiduciary obligations non-public information to the Company's shareholders under applicable law, (3) prior Person making such Takeover Proposal pursuant to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person in accordance with an executed confidentiality agreement containing customary limitations on not less restrictive of the use and disclosure other party than the provisions of Section 6.3(b); provided that all nonpublic written and oral such information furnished provided to such Person by has previously been provided to Parent or on behalf of the Company, and (4) is provided to Parent prior to furnishing any such nonpublic information or substantially concurrently with the time it is provided to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer ; and (iiB) not recommend a Superior Offer participate in discussions or negotiations with respect to its shareholders for a period of not less than such Takeover Proposal with the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of Person making such Superior Offer (pursuant to Section 4.3(b) below)Takeover Proposal.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Terra Industries Inc), Agreement and Plan of Merger (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
No Solicitation. Each Stockholder will not (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8and DLJ Merchant Banking, the Company shall Inc. will not directly or indirectly, and shall not authorize or permit ) take any subsidiary action that if taken by the Company would be a breach of Section 4.3(a) of the Company or any Representative Merger Agreement (disregarding for this purpose the proviso to the first sentence of any such Section 4.3(a), but subject to the last sentence of this Section 1(e)). Each Stockholder shall promptly advise Parent and Merger Sub orally and in writing of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement receipt by it of any Acquisition Proposal or take any action inquiry from any Person other than Parent regarding a potential acquisition of the Shares, the material terms and conditions of such Acquisition Proposal or inquiry, and the identity of the Person making any such Acquisition Proposal or inquiry. Such Stockholder (or DLJ Merchant Banking, Inc.) will keep Parent and Merger Sub informed on a current basis with respect to material developments relating to any such Acquisition Proposal or inquiry or any material modification or proposed modification thereto. Nothing in this Section shall restrict the activities of any individual (whether or not an affiliate of any Stockholder (or DLJ Merchant Banking, Inc.)) in his or her capacity as a director or officer of the Company. Notwithstanding the foregoing, if the Board of Directors of the Company determines in good faith that could a Qualified Acquisition Proposal made by any Person or Persons is reasonably be expected likely to lead to an Acquisition result in a Superior Proposal, each Stockholder (iiand DLJ Merchant Banking, Inc.) furnish any information regarding any of the Acquired Corporations shall be permitted to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposaland negotiations with, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing and furnish nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) or Persons if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes has concluded in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, Legal Requirements and the Company gives Parent written notice other requirements of the identity proviso to the first sentence of such Person and Section 4.3(a) of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not Merger Agreement have been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)satisfied.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Manufacturers Services LTD), Document Stockholder Agreement (Manufacturers Services LTD), Stockholder Agreement (Manufacturers Services LTD)
No Solicitation. (a) From Company agrees that, during the date term of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Agreement, the Company it shall not directly or indirectlynot, and shall not authorize or permit any subsidiary of the Company its subsidiaries or any Representative of any of the Acquired Corporations its or its subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly indirectly, to, : (i) solicit, initiate, encourage or induce facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making, submission or announcement making of any Acquisition Proposal proposal with respect to any recapitalization, merger, consolidation or take other business combination involving Company, or acquisition of 10% or more of the capital stock or any action that could reasonably be expected material portion of the assets (except as set forth in Section 5.3(d) to lead to an Acquisition Proposalthe Company Disclosure Schedule and except for acquisition of assets in the ordinary course of business consistent with past practice) of Company, or any combination of the foregoing ("Company Competing Transaction"); (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with negotiate, explore or in response to an Acquisition Proposal, (iii) otherwise engage in discussions with any Person person (other than Parent, Subcorp or their respective directors, officers, employees, agents and representatives) with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal Company Competing Transaction; or (viii) enter into any letter of intent agreement, arrangement or similar document understanding requiring it to abandon, terminate or fail to consummate the Merger or any Contract contemplating or otherwise relating to any Acquisition Transactionother transactions contemplated by this Agreement; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, nothing contained in this Section 4.3(a5.3(d) shall not prohibit the Board of Directors of Company from (i) furnishing nonpublic information regarding to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to Company than the Acquired Corporations to, Confidentiality Agreement) or entering into discussions withor negotiations with any person or group that makes an unsolicited bona fide written proposal for a Company Competing Transaction (an "Alternative Proposal"), any Person in response if, and only to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3extent that, (2A) the Board of Directors of the Company concludes in good faithCompany, based upon the advice written opinion of its outside legal counselcounsel (a copy of which shall be provided promptly to Parent), determines in good faith that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations duties to the Company's shareholders under applicable imposed by law, (3B) prior to furnishing any such nonpublic information to, or entering into discussions with, such PersonAlternative Proposal is not conditioned on the receipt of financing, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which has reasonably concluded in good faith that the Company's Board person or group making such Alternative Proposal will have adequate sources of Directors is reasonably expected financing to consider a Superior Offer consummate such Alternative Proposal and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).that such
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Southdown Inc), Agreement and Plan of Merger (Southdown Inc), Agreement and Plan of Merger (Medusa Corp)
No Solicitation. (a) From and after the date of this Agreement hereof until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 8in accordance with Article VIII, the Company shall not directly or indirectlyand each of its Subsidiaries and the officers, directors, and shall not authorize other agents, representatives and advisors (including any investment bankers, attorneys or permit any subsidiary accountants) of the Company or any Representative of any of the Acquired Corporations its Subsidiaries (collectively, "Company Representatives") shall not, directly or indirectly (and the Company shall not permit any of its or its Subsidiaries' other employees to), (ia) take any action to solicit, initiate, encourage intentionally encourage, or induce the making, submission or announcement of facilitate any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Takeover Proposal, or (iib) furnish subject to the terms of the immediately following sentence, engage in any discussions or negotiations with, or disclose any nonpublic information regarding relating to the Company or any of it Subsidiaries to, or afford access to the Acquired Corporations properties, books or records of the Company or any of its Subsidiaries to, any person that has advised the Company that such person may be considering making a Takeover Proposal (or that the Board of Directors or officers of the Company has reason to any Person in connection with believe is seeking to make, or in response to an Acquisition that has made, a Takeover Proposal) (each such person, (iii) engage in discussions with any Person with respect to any Acquisition Proposala "Competing Bidder"), (iv) approveor endorse, endorse approve or recommend any Acquisition Takeover Proposal or (v) enter into any agreement (including any letter of intent intent, preliminary agreement or similar document or arrangement) providing for any Contract contemplating or otherwise relating to any Acquisition TransactionTakeover Proposal; provided, however, provided that nothing herein shall prohibit the Board of Directors of the Company from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act. If prior to the approval acceptance for payment of this Agreement shares of Company Common Stock pursuant to the Offer (i) a bona fide unsolicited written Takeover Proposal shall be received by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative Board of any Directors of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3Company, and (2ii) the Board of Directors of the Company concludes determines in good faith (after consultation with its outside financial advisor and after considering all terms and conditions of such Takeover Proposal, including the likelihood and timing of its consummation) that such Takeover Proposal would result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger as contemplated by this Agreement (any such more favorable Takeover Proposal being referred to in this Agreement as a "Superior Proposal"), and (iii) the Board of Directors of the Company determines in good faith, based upon the advice of its after consultation with outside legal counsel, that such action it is required necessary in order for the Board of Directors of the Company to comply with its fiduciary obligations duties to the Company's shareholders stockholders under applicable law, and (3iv) prior to furnishing any the Company has notified Parent of such determination by the Board of Directors of the Company and has provided Parent with true and complete copies of the Takeover Proposal received from the Competing Bidder and the financial assumptions and projections reviewed and relied upon by the Board of Directors of the Company in determining that a Takeover Proposal constitutes a Superior Proposal, then Company Representatives may engage in discussions and negotiations with the Competing Bidder, disclose nonpublic information to, or entering into discussions with, such Person, relating to the Company gives Parent written notice and its Subsidiaries to the Competing Bidder, afford access to the properties, books or records of the identity of Company and its Subsidiaries to the Competing Bidder, modify or withdraw its Recommendation, recommend such Person and of Superior Proposal to the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf stockholders of the Company, and (4subject to Section 8.3(b)) approve the entering (but not enter) into an agreement for a Superior Proposal in accordance with Section 8.1(g), subject to compliance with each of the following requirements: (X) prior to furnishing any such information, engaging in such discussions or negotiations, disclosing such nonpublic information to information, or affording such Personaccess, the Company furnishes such nonpublic information shall provide to Parent (all documents containing or referring to non-public information of the Company that are supplied to the extent Competing Bidder; and (Y) the Company shall enter into a nondisclosure agreement with the Competing Bidder containing, and shall provide such nonpublic non-public information subject to, terms at least as restrictive on the Competing Bidder as the confidentiality agreement contained in Section 6.4(e)-(g) is on Parent; and (Z) the Company shall provide Parent at least three (3) business days prior notice before any modification or withdrawal of its Recommendation or any recommendation of a Superior Proposal or any approval of the entering into of an agreement for a Superior Proposal in accordance with Section 8.1(g) and Section 8.3(b). The Company shall immediately notify Parent after receipt of any Takeover Proposal, any inquiry looking toward a Takeover Proposal, or any request for non-public 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 that has made (or that the Company has reason to believe is considering making), a Takeover Proposal (such notice to include the identity of the person or persons making such proposal, inquiry, or request), and will keep Parent fully informed of the status and details of any such proposal, inquiry, or request (including all terms and conditions and modifications thereto) and shall provide Parent with a true and complete copy of such proposal, inquiry, or request and any amendment thereto, if it is in writing, or a written summary of the material terms thereof, if it is not been previously furnished in writing. The Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons (other than Parent) conducted heretofore with respect to a Takeover Proposal. Promptly following the signing and delivery of this Agreement the Company shall inform all employees of the Company and its Subsidiaries of the actions which the Company is prohibited from taking by the first sentence of this Section 5.2 and shall direct each such employee to refrain from taking any such action. The Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees shall further inform all such employees that any violation of any such direction shall be grounds for immediate termination of employment. The Company shall not be considered to be in breach of the restrictions set forth in the preceding first sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition 5.2 with respect to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice acts of any meeting of employee who is not a Company Representative unless such acts were performed at the Company's Board of Directors at which direction or with the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt knowledge of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Company Representative.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Ikos Systems Inc), Agreement and Plan of Merger and Reorganization (Mentor Graphics Corp), Agreement and Plan of Merger and Reorganization (Mentor Graphics Corp)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the adoption and approval of this Agreement by the Required Company Shareholder Stockholder Vote, the Company shall not be prohibited by this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer that is submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board board of Directors directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that the failure to take such action is required in order for would be inconsistent with the Board of Directors of the Company to comply with its fiduciary obligations of such board of directors to the Company's shareholders stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).the
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (LJL Biosystems Inc), Agreement and Plan of Merger and Reorganization (Molecular Devices Corp), Agreement and Plan of Merger and Reorganization (Molecular Devices Corp)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time The Company shall, shall cause each Subsidiary to and shall direct and use reasonable efforts to cause its and its Subsidiaries' officers, directors, employees, representatives and agents to, immediately cease any discussions or termination of this Agreement pursuant negotiations with any parties other than Parent and Sub that may be ongoing with respect to Section 8, the an Alternative Transaction (as hereinafter defined). The Company shall not, shall cause each Subsidiary not directly or indirectly, to and shall not authorize or permit any subsidiary of the Company its or its Subsidiaries' officers, directors or employees or any Representative of any of the Acquired Corporations investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectly toindirectly, (i) solicit, initiate, encourage initiate or induce furnish any information in response to any inquiries or the making, submission or announcement making of any Acquisition Proposal or take any action proposal that could reasonably be expected to may lead to an Acquisition Proposal, Alternative Transaction or (ii) furnish participate in any information discussions or negotiations regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition proposed Alternative Transaction; provided, however, that if, at any time prior to the approval acceptance for payment of this Agreement by Shares pursuant to and subject to the Required Company Shareholder Vote, this Section 4.3(aconditions (including the Minimum Condition) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3Offer, (2) the Board of Directors of the Company concludes determines in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for by reason of the Board of Directors of the Company to comply with its Directors' fiduciary obligations to the Company's shareholders duties under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of may (subject to compliance with Section 6.2(c)), in response to an unsolicited Third Party Proposal (as defined herein), (A) furnish information with respect to the identity of Company to the person making such Person and Third Party Proposal pursuant to a confidentiality agreement that is at least as protective of the Company's intention to furnish nonpublic information tointerests as is the Confidentiality Agreement (as defined in Section 7.2) and (B) participate in negotiations regarding such Alternative Transaction; provided, or enter into discussions withfurther, such Person, and that nothing contained in this Agreement shall prevent the Company receives or its Board of Directors from such Person an executed confidentiality agreement containing customary limitations on complying with Rules 14d-9 and 14e-2 promulgated under the use and disclosure of all nonpublic written and oral information furnished Exchange Act with regard to such Person by any proposed Alternative Transaction or on behalf withdrawing its recommendation of the Company, and (4) prior Offer pursuant to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to ParentSection 6.2(b). Without limiting the generality of the foregoing, the Company acknowledges and agrees it is understood that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any director, officer or employee of the Acquired CorporationsCompany or any Subsidiary or any investment banker, whether financial advisor, attorney, accountant or not such Representative is purporting to act other representative of the Company, acting on behalf of any of the Acquired CorporationsCompany, shall be deemed to constitute be a breach of this Section 4.3 6.2(a) by the Company. In addition to the foregoingFor purposes of this Agreement, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)."
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Endogen Inc), Agreement and Plan of Merger (Ewok Acquisition Corp), Agreement and Plan of Merger (Endogen Inc)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Article VII, the Company shall not directly or indirectlywill not, and shall not nor will it authorize or permit any subsidiary of the Company its officers, directors, affiliates or employees or any Representative of investment banker, attorney or other advisor or representative retained by any of the Acquired Corporations them to, directly or indirectly toindirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) subject to Section 5.2(c), approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contract agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required required Company Shareholder Stockholder Vote, this Section 4.3(a5.4(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations Company to, entering into a confidentiality agreement with or entering into discussions with, any Person person or group in response to a Superior Offer submitted by such Person person or group (and not withdrawn) if (1) neither the Company nor any Representative representative of any of the Acquired Corporations Company shall have violated any of the restrictions set forth in this Section 4.35.4, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Personperson or group, the Company gives Parent written notice of the identity of such Person person or group and of the Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, person or group and the Company receives from such Person person or group an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person person or group by or on behalf of the Company, and (4) prior to contemporaneously with furnishing any such nonpublic information to such Personperson or group, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Company will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is understood that any violation of any of the restrictions set forth in the preceding sentence two sentences by any Representative officer, director or employee of Company or any investment banker, attorney or other advisor or representative of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, Company shall be deemed to constitute be a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).5.4
Appears in 3 contracts
Samples: Agreement and Plan (Lsi Logic Corp), Agreement and Plan (Lsi Logic Corp), Agreement and Plan (Seeq Technology Inc)
No Solicitation. (a) From Subject to any Order of the Bankruptcy Court directing otherwise, from the date hereof, neither the Seller nor any controlled Affiliate of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Seller shall, the Company shall not directly or indirectly, and shall not authorize through any officer, director, employee, agent, professional, advisor or permit any subsidiary of the Company or any other Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, initiate or knowingly encourage any proposal or induce the making, submission or announcement of offer from any Acquisition Proposal or take Person (other than Purchaser) relating to any action that could reasonably be expected to lead to an Acquisition ProposalCompeting Transaction, (ii) furnish any information regarding with respect to, or assist or participate in, or facilitate in any other manner, any effort or attempt by any Person to do or seek the foregoing or (iii) seek or support Bankruptcy Court approval of a motion or Order inconsistent in any way with the transactions contemplated herein. Notwithstanding the foregoing, nothing contained herein shall prohibit Seller and any of the Acquired Corporations its Representatives from providing information to any Person in connection with or in response to an Acquisition Proposalunsolicited inquiries regarding a potential Competing Transaction. Notwithstanding anything to the contrary in this Agreement, (iii) the Seller may, directly or indirectly through its Representatives engage or participate in discussions with any Person with respect to any Acquisition Proposalthat has made a bona fide, (iv) approve, endorse unsolicited proposal or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise inquiry in writing relating to any Acquisition Transaction; providedCompeting Transaction other than as a result of a breach or violation of the terms of this Section 7.5, howeverand/or furnish to any such Person any information relating to the Seller and its Business, provided that prior to thereto the approval of this Agreement by Seller has complied with the Required Company Shareholder Vote, this Section 4.3(afollowing: (x) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations Seller shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply entered into a confidentiality agreement with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice terms of which are no less favorable to the identity of Seller than those contained in the Confidentiality Agreement and (y) Seller shall contemporaneously provide Purchaser with information provided to any such Person not previously provided to Purchaser and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least within twenty-four (24) hours prior notice if its receipt thereof, notify Purchaser of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of provide Purchaser with a copy of such Superior Offer (pursuant to Section 4.3(b) below)Person’s proposal, including the identity of such Person.
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Article VII, the Company shall not and its subsidiaries will not, nor will they authorize or knowingly permit any of their respective officers, directors, or affiliates or any investment banker, attorney or auditor retained by any of them to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage or knowingly induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that could constitutes or would reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect subject to any Acquisition ProposalSection 5.2(a)(iii), (iv) approve, endorse or recommend any Acquisition Proposal or (viv) enter into any letter of intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required required Company Shareholder Stockholder Vote, this Section 4.3(a) Agreement shall not prohibit the Company from (A) furnishing nonpublic information regarding the Acquired Corporations Company and its subsidiaries to, entering into a confidentiality agreement with or entering into discussions or negotiations with, any Person person or group in response to a Superior Offer submitted by such Person person or group (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations and its subsidiaries shall not have violated any of the restrictions set forth in this Section 4.35.4, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that the failure to take such action is required will result in order for a reasonable likelihood that the Company's Board of Directors of the Company to comply with will not fulfill its fiduciary obligations to the Company's shareholders stockholders under applicable lawDelaware Law, (3) prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Personperson or group, the Company gives Parent two (2) business days prior written notice of the identity of such Person person or group and of the Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, person or group and the Company receives from such Person person or group an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person person or group by or on behalf of Company that is no more favorable to such person or group than the CompanyNon-Disclosure Agreement is to Parent (provided that any such confidentiality agreement need not contain restrictions of the nature set forth in Section 7 thereof), and (4) prior to contemporaneously with furnishing any such nonpublic information to such Personperson or group, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting ) or (B) complying with Rules 14d-9 and 14e-2 promulgated under the generality of Exchange Act or other applicable law with regard to an Acquisition Proposal, PROVIDED, HOWEVER, that unless the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions conditions set forth in the preceding sentence by any Representative of any clauses (A) through (C) of the Acquired Corporationsfirst sentence of Section 5.2(a)(iii) are satisfied, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) may not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).withhold, withdraw,
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Sanmina Corp/De), Agreement and Plan of Reorganization (Sci Systems Inc)
No Solicitation. (a) From and after the date of this Agreement until the earlier to occur of the Effective Time or termination of this Agreement pursuant to Section 8Article VII, the Company shall not directly or indirectlyand its subsidiaries will not, and shall not nor will they authorize or permit any subsidiary of the Company their respective officers, directors, controlled affiliates or employees or any Representative of any of the Acquired Corporations their respective investment bankers, attorneys or other advisors or representatives to, directly or indirectly to, indirectly: (i) solicit, initiate, or take an action intended to encourage or induce the making, submission or announcement of any Acquisition Proposal (as defined below); (ii) engage or participate in any discussions or negotiations with any person (other than any officer, director, controlled affiliate or employee of Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of Company or any of its subsidiaries) regarding, or furnish to any person any information with respect to, or take any other action intended to facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, ; (iviii) approve, endorse or recommend any Acquisition Proposal Proposal; or (viv) enter into any letter of intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionTransaction (as defined below); provided, however, that prior to the approval of this Agreement and the Merger by the Required Company Shareholder Vote, nothing contained in this Agreement (including, without limitation, this Section 4.3(a5.7) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of Company from: (i) complying with Rule 14d-9 or 14e-2(a) promulgated under the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors Exchange Act or Section 329 or any other applicable section of the Company Israeli Companies Law with regard to comply with its fiduciary obligations to the Company's shareholders under applicable law, a tender or exchange offer (3) prior to furnishing any unless such nonpublic information to, tender or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any exchange offer was made in violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition 5.7); or (ii) in response to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the an unsolicited Acquisition Proposal that is not withdrawn and that Company's Board of Directors at which the Company's Board of Directors reasonably concludes constitutes a Superior Proposal (as defined below) (or that is reasonably expected likely to consider constitute, taking into account all of the relevant facts and circumstances, a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) belowProposal).,
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Precise Software Solutions LTD), Agreement and Plan of Merger (Veritas Software Corp /De/)
No Solicitation. (a) From Notwithstanding any waivers given by Acquiror Parent to the Elan Companies prior to the date of this Agreement until hereof, from and after the earlier date hereof and up to and including the Termination Date, without the prior written consent of the Effective Time or termination of this Agreement pursuant to Section 8Acquirors, the no Elan Company shall not directly or indirectly, and shall not will authorize or permit any subsidiary of the Company representative or any Representative employee of any of the Acquired Corporations Elan Company to (i) directly or indirectly to, (i) solicit, initiate, initiate or encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal furnishing information) or take any other action to facilitate knowingly any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to an Acquisition ProposalProposal from any Person, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person discussion or negotiation relating thereto or furnish information with respect to any Acquisition Proposalthe Elan Companies in connection therewith, (iv) approve, endorse or recommend any except as may be required in the exercise by it of its fiduciary duties under applicable law after receipt of an Acquisition Proposal or (v) enter into any letter which was unsolicited and did not otherwise result from a breach of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transactionthis Section 8.18(a); provided, however, that prior the Elan Companies shall furnish copies of any such information to the approval of this Agreement by Acquirors contemporaneously with the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, furnishment to any Person in response to a Superior Offer submitted by such Person (and not withdrawnwhich furnishment to such Person shall be subject to a customary confidentiality agreement), or (iii) if (1) neither the accept or agree to accept any Acquisition Proposal. If any Elan Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing receives any such nonpublic information toinquiries, offers or entering into discussions withproposals it shall promptly notify the Acquirors orally and in writing of such event. If any Elan Company receives an Acquisition Proposal, such PersonElan Company shall promptly notify the Acquirors in writing after the receipt thereof (including providing a copy thereof in writing), the Company gives Parent written notice terms and conditions of such Acquisition Proposal and the identity of the Person making such Person and Acquisition Proposal. Such Elan Company also shall promptly notify the Acquirors of any change to or modification of such Acquisition Proposal. As used herein, "Acquisition Proposal" means any proposal or offer (other than pursuant to this Agreement) to acquire in any manner an ownership interest in any part of the Company's intention to furnish nonpublic information to, Businesses or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Products.
Appears in 2 contracts
Samples: Asset Purchase Agreement (King Pharmaceuticals Inc), Asset Purchase Agreement (Elan Corp PLC)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly not, nor shall it permit or indirectlyauthorize any of its Subsidiaries or any officer, and shall not authorize director, employee, accountant, counsel, financial advisor, agent or permit any subsidiary other representative of the Company or any Representative of any of its Subsidiaries (collectively, the Acquired Corporations “Company Representatives”) to, directly or indirectly toindirectly, (i) solicit, initiate, encourage facilitate, respond to or induce encourage, including by way of furnishing non-public information, any inquiries regarding or relating to, or the makingsubmission of, submission any Takeover Proposal, (ii) participate in any discussions or announcement negotiations, furnish to any Person any information or data relating to the Company or its Subsidiaries, provide access to any of any Acquisition Proposal the properties, books, records or employees of the Company or its Subsidiaries or take any action other action, in each such case regarding or to facilitate the making of any proposal that could constitutes, or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Takeover Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement or commitment with respect to any Takeover Proposal (an “Alternative Acquisition Agreement”) or agree to, approve, endorse or resolve to recommend or approve any Takeover Proposal, except in each case as otherwise specifically provided in Section 7.2(c); (iv) grant any waiver or release under any standstill or similar document or agreement; (v) take any Contract contemplating action to exempt any Person from the restrictions on “business combinations” contained in Section 203 of Delaware Law or otherwise relating cause such restrictions not to apply, or (vi) authorize or direct any Acquisition TransactionCompany Representative to take any such action; provided, however, that nothing contained in this Section 7.2(a) or any other provision hereof shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company’s stockholders a position required by Rules 14d-9 and 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (B) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company Board, after consultation with its outside counsel, is required under applicable Law in order to comply with its fiduciary duties, or (C) notifying any Person solely of the existence of and restrictions under the provisions of this Section 7.2, provided that the Company may not, except as permitted by Section 7.2(b) or (c), withdraw or modify, or propose to the public or any Third Party (other than the Company’s agents and representatives) to withdraw or modify, its approval or recommendation of this Agreement or the transactions contemplated hereby, including the Merger, or approve or recommend, or propose to the public or any Third Party (other than the Company’s agents and representatives) to approve or recommend any Takeover Proposal, or enter into any Alternative Acquisition Agreement. Upon execution of this Agreement, the Company shall, and it shall cause the Company Representatives and its Subsidiaries to, immediately cease and cause to be terminated any existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to any Takeover Proposal. Notwithstanding any of the foregoing restrictions set forth in this Section 7.2(a), nothing in this Agreement shall prevent the Company or the Company Board from furnishing (or causing to be furnished), prior to, but not after, the time the vote is taken with respect to the approval of the Company Voting Proposal at the Company Meeting, information concerning its business, properties or assets, which information is not of greater scope, area or detail than was provided to Parent, to any Person or group pursuant to a confidentiality agreement with terms and conditions substantially similar to those of the Confidentiality Agreement, and may negotiate and participate in discussions and negotiations with such Person or group who has made a bona fide, written Takeover Proposal, but only if: (w) such Takeover Proposal was made after the date of this Agreement (it being understood that such a Takeover Proposal made after the date of this Agreement by a Person who has made a Takeover Proposal prior to the Required Company Shareholder Vote, date of this Section 4.3(aAgreement shall be considered a new Takeover Proposal made after the date of this Agreement) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any none of the Acquired Corporations shall have Company, its Subsidiaries and their representatives has violated any of the restrictions set forth in this Section 4.3, 7.2 (other than immaterial violations that have not (1) directly or indirectly resulted in the making of such Takeover Proposal or (2) otherwise had an adverse impact on Parent’s rights under this Section 7.2) with respect to such Person making the Board of Directors of Takeover Proposal; (x) such Person or group has submitted a Takeover Proposal that the Company concludes Board has determined (after consultation with outside legal counsel) either (i) constitutes a Superior Proposal (as defined below) or (ii) is more favorable to the Company’s stockholders from a financial point of view than the Merger and is reasonably likely to lead to a Superior Proposal; and (y) the Company Board determines in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of to discharge the Company to comply with its Board’s fiduciary obligations duties to the Company's shareholders ’s stockholders under applicable law, (3) prior to furnishing Law. The Company shall not release or permit the release of any such nonpublic information toPerson from, or entering into discussions withwaive or permit the waiver of any provision of, such Personany confidentiality, standstill or similar agreement to which the Company gives is a party or under which the Company has any rights. The Company will promptly (and in any event within one (1) Business Day) notify Parent written notice telephonically and in writing of the identity existence of such Person and of any proposal, discussion, negotiation or inquiry received by the Company's intention Company that is or could reasonably be expected to furnish nonpublic information to, or enter into discussions with, such Personconstitute a Takeover Proposal, and the Company receives from will promptly communicate in writing to Parent the terms and conditions of any such Person an executed confidentiality agreement containing customary limitations on proposal, discussion, negotiation or inquiry which it may receive and a copy thereof and the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf identity of the Company, and Person making the same. The Company shall inform Parent within one (41) prior Business Day after any change to furnishing the material terms of any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent Takeover Proposal. Within one (to the extent such nonpublic information has not been previously furnished 1) Business Day after any determination by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees Board that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoingTakeover Proposal constitutes a Superior Proposal, the Company shall (i) provide deliver to Parent with at least twenty-four (24) hours prior and Merger Sub a written notice advising them of any meeting such determination, specifying the terms and conditions of such Superior Proposal and the identity of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Person making such Superior Offer Proposal, and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of providing Parent and Merger Sub with a copy of such the Superior Offer (pursuant Proposal. The Company will promptly provide to Section 4.3(b) below)Parent any non-public information concerning the Company provided to any other Person or group which was not previously provided to Parent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Netopia Inc), Agreement and Plan of Merger (Netopia Inc)
No Solicitation. The Company agrees that neither it nor any of its officers and managers shall, and that it shall use its reasonable best efforts to cause its employees, agents and representatives (aincluding any investment banker, attorney or accountant retained by it) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant not to Section 8, the Company shall not directly or indirectly, (and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations them to) directly or indirectly to, indirectly: (i) solicit, initiate, encourage encourage, knowingly facilitate or induce any inquiry with respect to, or the making, submission or announcement of of, any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish any information regarding any of the Acquired Corporations to any Person in connection person any nonpublic information with respect to, or in response take any other action to an facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any Person person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or Proposal, (v) enter into any letter of intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; providedProposal or transaction contemplated thereby, howeveror (vi) without limiting the generality of the Company’s obligations contained in Section 4.1(s), that grant any waiver or release under any standstill or similar agreement with respect to any equity interests of the Company. The Company will immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal. Notwithstanding any other provision in this Section 4.2(a), prior to the approval Company Members’ Meeting, and subject to compliance with the other terms of this Agreement by Section 4.2 and to first entering into a confidentiality agreement having provisions that are no less favorable to Company than those contained in the Required Company Shareholder VoteConfidentiality Agreement, this Section 4.3(a) shall not prohibit the Board of Managers of the Company from furnishing shall be permitted to engage in discussions or negotiations with, or provide any nonpublic information regarding or data to (provided that such information or data also is simultaneously given to Parent to the Acquired Corporations to, or entering into discussions withextent not previously given to Parent), any Person in response to a Superior Offer submitted an unsolicited bona fide written proposal for an Acquisition Proposal by such Person first made after the date hereof which the Board of Managers of Company concludes in good faith (after consultation with its financial advisor and not withdrawnoutside legal counsel) constitutes or is reasonably likely to constitute a Superior Proposal, if and only to the extent that the Board of Managers of Company reasonably determines in good faith (1after consultation with outside legal counsel) neither the that failure to do so would be inconsistent with its fiduciary duties under applicable law; provided, that Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) and the Board of Directors of Managers shall have given Parent (orally and in writing) at least 48 hours prior notice of its intent to do so before taking any such action; provided, further, that the Company and the Board of Managers shall keep Parent informed of the status and terms of any such proposals, offers, discussions or negotiations on a current basis; provided, further, that the Board of Managers shall not recommend any Superior Proposal to the members of the Company Stock except as permitted under Section 5.2, and only after the Company shall first have complied with the procedures set forth in such Section. For purposes of this Agreement, “Superior Proposal” shall mean a bona fide, unsolicited written proposal for an Acquisition Proposal that did not arise from a breach of Section 4.2 (substituting for this purpose 80% for each reference to 10% in the definition of Acquisition Proposal) that the Board of Managers concludes in good faith, based upon the advice of after consultation with its financial advisor and its outside legal counsel, that such action is required in order for the Board of Directors taking into account all legal, financial, regulatory and other aspects of the Company to comply with its fiduciary obligations proposal and the Person making the proposal as permitted under applicable law (i) is more favorable to the Company's shareholders under applicable law’s members from a financial point of view, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, than the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person transactions contemplated by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer Agreement and (ii) not recommend is fully financed and reasonably likely to receive all required governmental approvals on a Superior Offer to its shareholders for a period timely basis and otherwise reasonably capable of not less than being completed on the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).terms
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Millennium Ethanol, LLC), Agreement and Plan of Merger (US BioEnergy CORP)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the Company Seller shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company Affiliate or any Representative of any of the Acquired Corporations Seller directly or indirectly to, (i) solicit, initiate, encourage encourage, induce or induce facilitate the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations Seller to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition TransactionAcquisition; providedPROVIDED, howeverHOWEVER, that prior to the approval adoption of this Agreement by the Required Company Shareholder Seller Stockholder Vote, this Section 4.3(a6.6(a) shall not prohibit the Company Seller from furnishing nonpublic information regarding the Acquired Corporations Seller to, or entering into discussions with, any Person in response to a Superior Offer Proposal that is submitted to Seller by such Person (and not withdrawn) if (1) neither the Company Seller nor any Representative of any of the Acquired Corporations Seller shall have violated any of the restrictions set forth in this Section 4.36.6, (2) the Board board of Directors directors of the Company Seller concludes in good faith, based upon after having taken into account the advice of its outside legal counsel, that such action is required in order for the Board board of Directors directors of the Company Seller to comply with its fiduciary obligations to the CompanySeller's shareholders stockholders under applicable law, (3) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company Seller gives Parent written notice of the identity of such Person and of the CompanySeller's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company Seller receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).all
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tab Products Co), Asset Purchase Agreement (Docucon Incorporated)
No Solicitation. (a) From The Company agrees that following the date of this Agreement until and prior to the earlier of the Effective Time or termination the Termination Date, neither it nor any of this Agreement pursuant its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to Section 8cause its and its Subsidiaries' employees, the Company shall agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, and shall not authorize initiate inquiries regarding or permit solicit the making of any subsidiary Takeover Proposal. The Company further agrees that neither it nor any of the Company or any Representative of its Subsidiaries nor any of the Acquired Corporations officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly toindirectly, engage in any negotiations concerning a Takeover Proposal. Notwithstanding anything in this Agreement to the contrary, the Company and the Company's Board of Directors shall be permitted to (iA) solicitcomply with Rule 14d-9, initiate, encourage or induce Rule 14e-2 and other applicable rules promulgated under the making, submission or announcement of any Acquisition Exchange Act with regard to a Takeover Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iiiB) engage in any discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations tonegotiations with, or entering into discussions withprovide any information to, any Person in response to a Superior Offer submitted an unsolicited Takeover Proposal by any such Person; provided, that prior to its receipt of any information from the Company, such Person (and not withdrawn) if (1) neither shall be required to enter into a customary confidentiality agreement with the Company nor any Representative of any containing terms no less restrictive than the terms of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, Confidentiality Agreement and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure shall provide Parent with copies of all nonpublic written and oral information furnished provided to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent that such nonpublic information has not been previously furnished by provided to Parent; provided, further that any information provided to such Person shall be concurrently provided to the Parent. The Company agrees that it will, and will cause its officers, directors and representatives to, immediately cease and cause to be terminated any negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Takeover Proposal. The Company agrees that it will use reasonable best efforts to promptly inform its directors, officers, key employees, agents and representatives of the obligations undertaken in this Section 5.4. Nothing in this Section 5.4 shall permit Parent or the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth terminate this Agreement (except as specifically provided in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) belowArticle VII).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Enstar Group Inc), Agreement and Plan of Merger (Castlewood Holdings LTD)
No Solicitation. (a) From Except as permitted by this Section 5.03, from the date of this Agreement hereof until the earlier of Effective Time, or, if earlier, the Effective Time or termination of this Agreement pursuant to Section 8in accordance with its terms, the Company shall not directly or indirectlynot, and nor shall not it authorize or permit any subsidiary Company Subsidiary to, nor shall it authorize any Representatives of the Company or any Representative of any of the Acquired Corporations Company Subsidiary to, directly or indirectly toindirectly, (i) solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action to knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to an Acquisition to, a Company Takeover Proposal, (ii) furnish enter into any information regarding any agreement, letter of the Acquired Corporations to any Person in connection with intent, memorandum of understanding or in response to an Acquisition Proposal, (iii) engage in discussions with any Person other similar instrument with respect to any Acquisition Proposal, Company Takeover Proposal (ivother than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03) approve, endorse or recommend any Acquisition Proposal or (viii) enter into any letter of intent or similar document or any Contract contemplating into, continue, conduct, engage or otherwise relating participate in any discussions or negotiations regarding, or furnish to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic Person any non-public information regarding the Acquired Corporations with respect to, or entering into discussions withfor the purpose of encouraging or facilitating, any Company Takeover Proposal. The Company shall, shall cause the Company Subsidiaries, and shall direct its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted theretofore with respect to any Company Takeover Proposal and request that any such Person promptly return and/or destroy all confidential information concerning the Company and the Company’s Subsidiaries to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, prior to obtaining Company Stockholder Approval, the Company and its Representatives may, in response to each (if any) Company Takeover Proposal made after the date hereof that does not result from a Superior Offer submitted by material breach of this Section 5.03, (y) contact the Person making such Person Company Takeover Proposal solely to clarify the terms and conditions thereof and (and not withdrawnz) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes determines in good faith, based upon the advice of its after consultation with independent financial advisors and outside legal counsel, that such action Company Takeover Proposal constitutes or is required in order for the Board of Directors of reasonably be expected to lead to a Superior Company Proposal, (1) provide access to or furnish information with respect to the Company to comply with its fiduciary obligations and the Company Subsidiaries to the Company's shareholders under applicable lawPerson making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement; provided, (3) that the Company will prior to furnishing any or concurrently with the time such nonpublic information to, or entering into discussions with, is provided to such Person, Person provide Parent with all non-public information regarding the Company gives that has not previously been provided to Parent written notice of the identity of that is provided to any Person making such Company Takeover Proposal; and (2) conduct, engage or participate in discussions or negotiations with such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, its Representatives making such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Independence Realty Trust, Inc), Agreement and Plan of Merger (Trade Street Residential, Inc.)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage encourage, induce or induce facilitate the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that this Section 4.3 shall not be deemed to prevent the Company or its board of directors from complying with its legal obligations under Rules 14d-9 and 14c-2 under the Exchange Act with regard to an Acquisition Proposal (it being understood that such compliance may constitute a Triggering Event under certain circumstances); and provided, further, that prior to the approval adoption of this Agreement by the Required Company Shareholder Stockholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated breached or taken any action inconsistent with any of the restrictions provisions set forth in this Section 4.3, (2) the Board board of Directors directors of the Company concludes in good faith, based upon the advice of after having consulted with its outside legal counsel, that such action is required in order for the Board board of Directors directors of the Company to comply with its fiduciary obligations to the Company's shareholders stockholders under applicable law, (3) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) at least two business days prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of action inconsistent with any of the restrictions provisions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Ashford Com Inc), Agreement and Plan of Merger and Reorganization (Global Sports Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectly, and shall not authorize or permit any subsidiary Representative of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Company Acquisition Proposal or take any action that could reasonably be expected to lead to an any inquiries related to or the making of a Company Acquisition Proposal, (ii) furnish any information regarding the Company or any of the Acquired Corporations Company Subsidiary to any Person in connection with or in response to an any inquiry relating to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction; providedPROVIDED, howeverHOWEVER, that prior to the adoption and approval of this Agreement by the Required Company Shareholder Stockholder Vote, the Company shall not be prohibited by this Section 4.3(a) shall not prohibit the Company from (A) furnishing nonpublic information regarding the Acquired Corporations Company or any Company Subsidiary to, or entering into discussions with, any Person in response to a Company Superior Offer that is submitted by such Person (and not withdrawn) relating to a Company Acquisition Transaction if (1) neither the Company nor any Representative of any of the Acquired Corporations Company shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board board of Directors directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required the failure to provide information in order for response to a written request by a Person making a Company Acquisition Proposal and the Board of Directors of failure to consider the Company Acquisition Proposal would be reasonably likely to comply with constitute a breach of its fiduciary obligations to the Company's shareholders stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person Person, the terms and conditions of such Company Superior Offer and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company it receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, Company and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent), (B) withdrawing or modifying its unanimous recommendation referred to in Section 5.2(b) following receipt of a Company Superior Offer if after duly considering the advice of outside counsel to the Company, the board of directors of the Company determines in good faith that failure to do so would be reasonably likely to constitute a breach of its fiduciary obligations to the Company's stockholders under applicable law, or (C) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Transaction. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporationsits Representatives, whether or not such Representative is purporting to act on behalf of any of the Acquired CorporationsCompany, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company Nothing contained in this Section 4.3 shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of limit the Company's Board of Directors at which obligation to call, give notice of, convene and hold the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Company Stockholders' Meeting in accordance with Section 4.3(b) below)5.2.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Cypros Pharmaceutical Corp), Agreement and Plan of Reorganization (Cypros Pharmaceutical Corp)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectlyindirectly do, and shall not authorize or permit any subsidiary of the Company or any ensure that no Representative of any of the Acquired Corporations directly or indirectly todoes, any of the following: (i) solicit, initiate, encourage encourage, induce or induce facilitate the communication, making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal, Proposal or Acquisition Inquiry; (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal or Proposal; (v) execute or enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; or (vi) release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights; provided, however, that that, notwithstanding anything contained in this Section 4.3(a) (but subject to the other provisions of this Agreement), prior to the adoption and approval of this Agreement by the Required Company Shareholder Stockholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing may furnish nonpublic information regarding the Acquired Corporations to, or entering enter into discussions or negotiations with, or take any of the actions specified in clause (v) with respect to any Person in response to a Superior Offer an unsolicited bona fide written Acquisition Proposal that is submitted to the Company by such Person (and not withdrawn) if if: (1A) neither the Company nor any Representative of any of the Acquired Corporations shall have violated breached or taken any action inconsistent with any of the restrictions provisions set forth in this Section 4.3; (B) the board of directors of the Company has determined in good faith (after consultation with its outside legal counsel and financial advisors) that the Acquisition Inquiry or the Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Offer, (2C) the Board board of Directors directors of the Company concludes in good faith, based upon after having taken into account the advice of its outside legal counsel, that such action is required in order for the Board board of Directors directors of the Company to comply with its fiduciary obligations to the Company's shareholders ’s stockholders under applicable law, Legal Requirements; (3D) at least two (2) business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, or take any of the actions specified in clause (v) with respect to, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's ’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and ; (E) the Company receives from such Person an executed confidentiality agreement containing customary limitations on provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions, no hire provisions and “standstill” provisions) at least as favorable to the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Company as those contained in the Company, Confidentiality Agreement; and (4F) at least two (2) business days prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth that, in the preceding sentence by event any Representative of any of the Acquired Corporations, Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative 38. shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice for purposes of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Clinical Data Inc), Agreement and Plan of Merger and Reorganization (Avalon Pharmaceuticals Inc)
No Solicitation. (a) The Company shall immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to a Takeover Proposal and shall seek to have returned to the Company any confidential information that has been provided in any such discussions or negotiations. From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8hereof, the Company shall not directly or indirectlynot, and nor shall not it permit any of its Subsidiaries to, nor shall it authorize or permit any subsidiary of the Company its officers, directors, or employees or any Representative of Affiliate, investment banker, financial advisor, attorney, accountant, or other representative retained by it or any of the Acquired Corporations its Subsidiaries to, directly or indirectly toindirectly, (i) solicit, initiateinitiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action that could intended to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to an Acquisition Proposalto, any Takeover Proposal or (ii) furnish participate in any information discussions or negotiations regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Takeover Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior following the receipt of a Superior Proposal or a proposal which is reasonably expected to lead to a Superior Proposal that was unsolicited and made after the approval date hereof in circumstances not otherwise involving a breach of this Agreement by the Required Company Shareholder VoteAgreement, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations tomay, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (Takeover Proposal and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this subject to compliance with Section 4.35.2(c), (2A) request information from the Person making such Takeover Proposal for the purpose of the Board of Directors of the Company concludes in good faithinforming itself about the Takeover Proposal that has been made and the Person that made it, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of (B) furnish information with respect to the Company to comply with its fiduciary obligations the Person making such Takeover Proposal pursuant to a confidentiality agreement, provided that (1) such confidentiality agreement contains substantially the same terms as (or terms no less favorable to the Company's shareholders under applicable law) than those contained in the Confidentiality Agreement dated as of February 27, 2004 between Parent and the Company (3as it may be amended, the “Confidentiality Agreement”) prior to furnishing any and (2) the Company advises Parent of all such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of delivered to such Person and of concurrently with its delivery to the Company's intention to furnish nonpublic information to, or enter into discussions with, such requesting Person, and (C) participate in negotiations with such Person regarding such Takeover Proposal; provided, further, that the actions described in clauses (B) and (C) of the immediately preceding proviso may be taken only on or before the date the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)Shareholder Approval is obtained. Without limiting the generality of the foregoing, the Company acknowledges and agrees It is agreed that any violation of any of the restrictions set forth in the preceding sentence by any Representative executive officer, director, investment banker, attorney, or other advisor or representative of the Company or any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, its Subsidiaries shall be deemed to constitute be a breach of this Section 4.3 5.2(a) by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Isco Inc), Agreement and Plan of Merger (Isco Inc)
No Solicitation. (a) From Except as expressly permitted by this Section 5.3, the Company, on the one hand, and Parent, on the other hand, shall, and each shall cause its Subsidiaries and their respective directors, officers and employees to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives and Affiliates to, (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any Person that may be ongoing with respect to a Takeover Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement) or otherwise request, any Person that has executed a confidentiality or non-disclosure agreement within the twelve (12)-month period prior to the date of this Agreement in connection with any actual or potential Takeover Proposal to return or destroy all such confidential information or documents previously furnished in connection therewith or material incorporating any such information in the possession of such Person or its Representatives (and to confirm in writing the return or destruction of all such information) and (ii) from and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8or, if earlier, the Company shall not Termination Date, not, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (iA) solicit, initiateinitiate or knowingly facilitate or knowingly encourage any inquiries regarding, encourage or induce the making, submission or announcement making of any Acquisition Proposal proposal or take any action offer that could constitutes, or would reasonably be expected to lead to an Acquisition to, a Takeover Proposal, (iiB) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish any information regarding any of the Acquired Corporations to any other Person any non-public information in connection with or for the purpose of encouraging or facilitating, a Takeover Proposal (other than (x) solely in response to an Acquisition Proposalunsolicited inquiry, to refer the inquiring Person to this Section 5.3(a) or (iiiy) engage in discussions with upon receipt of a bona fide, unsolicited written Takeover Proposal from any Person that did not result from a breach of this Section 5.3(a), solely to the extent necessary to ascertain facts or clarify terms with respect to any Acquisition Proposala Takeover Proposal for the Company Board of Directors or the Parent Board of Directors, as applicable, to be able to have sufficient information to make the determination described in Section 5.3(b)) or (ivC) approve, endorse recommend or enter into, or propose to approve, recommend any Acquisition Proposal or (v) enter into into, any letter of intent or similar document document, agreement, commitment or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person agreement in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders principle providing for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Eldorado Resorts, Inc.), Agreement and Plan of Merger (CAESARS ENTERTAINMENT Corp)
No Solicitation. (a) From Following the date execution and delivery of this Agreement until the earlier of the Effective Time or termination of Agreement, and unless this Agreement pursuant to Section 8is terminated in accordance with its terms, the Company shall not neither Sellers nor their members, shareholders, Affiliates, officers, employees, agents and representatives will, directly or indirectly, and shall not authorize or permit solicit from any subsidiary of the Company or Person, initiate with any Representative of any of the Acquired Corporations directly or indirectly toPerson, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in continue discussions with any Person with respect regarding or otherwise encourage any Person to make any Acquisition Proposalinquiries or proposals, or furnish information relating to the acquisition, in whole or in part, of the Business or any merger, consolidation, business combination, sale of a substantial portion of the assets, recapitalization, any investment whatsoever in Cratos or any of the Subsidiaries, other similar transactions involving the Business or any other transaction that would impair the ability of Cratos to consummate the transactions contemplated hereby (ivany such transaction, an “Alternative Transaction”) approve, endorse or recommend engage in any Acquisition Proposal negotiations or (v) enter into any letter of intent agreement or similar document or understanding with any Contract contemplating or otherwise relating Person (other than Buyer) regarding an Alternative Transaction. During the period described in the preceding sentence, Sellers and their shareholders, Affiliates, officers, employees, agents and representatives will not furnish any information concerning the Business to any Acquisition Transaction; provided, however, that prior to Person other than Buyer for the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations topurpose of, or entering into discussions withwith the intent of, any Person in response to a Superior Offer submitted by permitting such Person (to evaluate an Alternative Transaction and not withdrawn) if (1) neither the Company nor any Representative Sellers will notify Buyer in writing of any proposals or inquiries received by Sellers, Cratos or their respective agents, as applicable, concerning any Alternative Transaction. Sellers acknowledge that in the event of a breach by any of them of the Acquired Corporations shall have violated any of the restrictions set forth covenants contained in this Section 4.36.3, (2) the Board of Directors of the Company concludes in good faithmoney damages would be an inadequate remedy. Accordingly, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations without prejudice to the Company's shareholders under applicable rights of Buyer to seek such damages or other remedies available to it at law, (3) prior Buyer may seek injunctive or other equitable relief in any proceeding that Buyer may bring to furnishing any such nonpublic information to, or entering into discussions with, such Person, enforce the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth covenants contained in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)6.3.
Appears in 2 contracts
Samples: Purchase Agreement (JMP Group Inc.), Purchase Agreement (JMP Group Inc.)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Article VII, the Company shall not directly or indirectlyand its subsidiaries will not, and shall not nor will they authorize or permit any subsidiary of the Company their respective officers, directors, controlled affiliates or employees or any Representative of investment banker, attorney or other advisor or representative retained by any of the Acquired Corporations them to, directly or indirectly toindirectly, (i) solicit, initiate, induce or knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal (as defined below), (ii) participate in any discussions or negotiations with a third party regarding, or furnish to any person any information with respect to, or take any other action to knowingly facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionTransaction (as defined below); provided, however, that prior nothing contained in this Section 5.4 shall prohibit the Board of Directors of Company from (i) complying with Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or (ii) in response to an unsolicited, bona fide written Acquisition Proposal that Company's Board of Directors reasonably concludes constitutes a Superior Proposal (as defined below), engaging in discussions or participating in negotiations with and furnishing information to the approval party making such Acquisition Proposal and approving, endorsing or recommending such Acquisition Proposal and withdrawing its recommendation of this Agreement by and the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit Merger to the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person extent (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2A) the Board of Directors of the Company concludes determines in good faith, based upon the advice of faith after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of the Company counsel (who may be Company's independent legal counsel acting with respect to comply with this Agreement) its fiduciary obligations to the Company's shareholders under applicable lawlaw require it to do so, (B) (x) at least three (3) (which shall include at least two (2) business days) days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Personparty, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, party and the (y) Company receives from such Person party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person party by or on behalf of the Company, and (4C) prior to contemporaneously with furnishing any such nonpublic information to such Personparty, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is understood that any violation of any of the restrictions set forth in the preceding sentence this Section 5.4 by any Representative officer, director, controlled affiliate or employee of Company or any of the Acquired Corporationsits subsidiaries or any investment banker, whether attorney or not such Representative is purporting to act on behalf other advisor or representative of Company or any of the Acquired Corporations, its subsidiaries shall be deemed to constitute be a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).5.4
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Proxim Inc /De/), Agreement and Plan of Reorganization (Proxim Inc /De/)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8The COMPANY shall not, the Company shall not directly or indirectly, and shall not authorize through any officer, director, employee, financial advisor, representative or permit any subsidiary agent of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, such party (i) solicit, initiate, or encourage any inquiries or induce the makingproposals that constitute, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale or transfer of substantial assets, sale of any shares of capital stock (including without limitation by way of a tender offer) or similar transaction involving it or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"), (ii) furnish engage in negotiations or discussions concerning, or provide any non-public information regarding any of the Acquired Corporations to any Person in connection with person or in response to an Acquisition Proposalentity relating to, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, or (iviii) approve, endorse agree to or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition TransactionProposal; providedPROVIDED, howeverHOWEVER, that prior to the approval of nothing contained in this Agreement by shall prevent the Required Company Shareholder VoteCOMPANY or its Board of Directors, this Section 4.3(afrom (A) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations tonon-public information, or entering into discussions or negotiations with, any Person person or entity in response to a Superior Offer submitted connection with an unsolicited bona fide written Acquisition Proposal by such Person (person or entity or recommending an unsolicited bona fide written Acquisition Proposal to its stockholders, if and not withdrawn) if only to the extent that (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes COMPANY believes in good faithfaith (after consultation with its financial advisor) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and, based upon after taking into account the advice strategic benefits anticipated to be derived from the Merger and the long-term prospects of its the COMPANY and BUYER as a combined company, would, if consummated, result in a transaction more favorable over the long term than the transaction contemplated by this Agreement and the COMPANY's Board of Directors determines in good faith after consultation with outside legal counsel, counsel that such action is required in order necessary for the such Board of Directors of the Company to comply with its fiduciary obligations duties to the Company's shareholders stockholders under applicable law, law and (32) prior to furnishing any such nonpublic non-public information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, person or enter into discussions withentity, such Person, and the Company Board of Directors receives from such Person person or entity an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished with terms no more favorable to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth party than those contained in the preceding sentence by any Representative of any of Confidentiality Agreements; or (B) complying with Rule 14e-2 promulgated under the Acquired Corporations, whether or not such Representative is purporting Exchange Act with regard to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)an Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Moovies Inc), Agreement and Plan of Merger (Video Update Inc)
No Solicitation. (a) From the date No Acquired Company, nor any of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8their Representatives, the Company shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, or encourage or induce the making, submission or announcement of any inquiries or the making of any proposal or offer related to an Acquisition Proposal Transaction or take any action that could reasonably be expected to lead to an Acquisition Proposalany such inquiries or the making of any such proposal or offer, (ii) furnish any information regarding any of the Acquired Corporations Companies to any Person in connection with or in response to an Acquisition ProposalTransaction or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Transaction, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition ProposalTransaction, (iv) approve, endorse or recommend any Acquisition Proposal Transaction, (v) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Transaction or (vvi) enter into any letter of intent or similar document or any Contract contemplating having a primary purpose of effectuating, or otherwise relating to which could effect, any Acquisition Transaction; provided, however, that prior to the approval adoption of this Agreement by the Required Company Shareholder Stockholder Vote, this Section 4.3(a4.2(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations Companies to, or entering into discussions or negotiations with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company Acquired Companies nor any of their Representative of have taken any actions inconsistent with any of the Acquired Corporations shall have violated any of the restrictions provisions set forth in this Section 4.34.2, (2) the Board board of Directors directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board board of Directors directors of the Company to comply with its fiduciary obligations to the Company's shareholders stockholders under applicable lawLegal Requirements, (3) at least 48 hours prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person Person, a reasonably detailed description of such Superior Offer and of the Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, and (4) the Company receives from such Person an executed confidentiality and standstill agreement in customary form, and in any event containing customary limitations on provisions no less favorable in the use aggregate to the Company than those contained in the Confidentiality Agreement dated April 28, 2005, between Parent and disclosure of all nonpublic written and oral information furnished to such Person by or Xxxxxxxx Xxxxx on behalf of the CompanyCompany (the "CONFIDENTIALITY AGREEMENT"), unless a confidentiality and standstill agreement on substantially the same terms and conditions as the Confidentiality Agreement has been executed by such Person prior to the date of this Agreement, and (45) prior to contemporaneously with furnishing any such additional nonpublic information to such Person, the Company furnishes such additional nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished Delivered by the Company to Parent)) provided, that this Section 4.2(a) shall not prohibit the Company's board of directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired CorporationsCompanies, whether or not such Representative is purporting to act on behalf of any of the Acquired CorporationsCompanies, shall be deemed to constitute a breach of this Section 4.3 4.2 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lancer Corp /Tx/), Agreement and Plan of Merger (Lancer Corp /Tx/)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectly, and shall not authorize or permit any subsidiary Representative of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Company Acquisition Proposal or take any action that could reasonably be expected to lead to an any inquiries related to or the making of a Company Acquisition Proposal, (ii) furnish any information regarding the Company or any of the Acquired Corporations Company Subsidiary to any Person in connection with or in response to an any inquiry relating to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction; provided, however, that prior to the adoption and approval of this Agreement by the Required Company Shareholder Stockholder Vote, the Company shall not be prohibited by this Section 4.3(a) shall not prohibit the Company from (A) furnishing nonpublic information regarding the Acquired Corporations Company or any Company Subsidiary to, or entering into discussions with, any Person in response to a Company Superior Offer that is submitted by such Person (and not withdrawn) relating to a Company Acquisition Transaction if (1) neither the Company nor any Representative of any of the Acquired Corporations Company shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board board of Directors directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required the failure to provide information in order for response to a written request by a Person making a Company Acquisition Proposal and the Board of Directors of failure to consider the Company Acquisition Proposal would be reasonably likely to comply with constitute a breach of its fiduciary obligations to the Company's shareholders stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person Person, the terms and conditions of such Company Superior Offer and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company it receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, Company and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent), (B) withdrawing or modifying its unanimous recommendation referred to in Section 5.2(b) following receipt of a Company Superior Offer if after duly considering the advice of outside counsel to the Company, the board of directors of the Company determines in good faith that failure to do so would be reasonably likely to constitute a breach of its fiduciary obligations to the Company's stockholders under applicable law, or (C) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Transaction. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporationsits Representatives, whether or not such Representative is purporting to act on behalf of any of the Acquired CorporationsCompany, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company Nothing contained in this Section 4.3 shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of limit the Company's Board of Directors at which obligation to call, give notice of, convene and hold the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Company Stockholders' Meeting in accordance with Section 4.3(b) below)5.2.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Ribogene Inc / Ca/), Agreement and Plan of Reorganization (Questcor Pharmaceuticals Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the Company shall not directly or indirectly, and shall not authorize or permit any subsidiary None of the Company or Parent (each, a “No-Shop Party”) or their respective Subsidiaries or any Representative of such No-Shop Party or any of the Acquired Corporations its Subsidiaries shall directly or indirectly to, (i) solicit, initiate, knowingly encourage or induce the makingknowingly facilitate, submission directly or announcement indirectly (including by way of any Acquisition Proposal furnishing non-public information), or take any other action that could reasonably be expected designed to lead to facilitate, any inquiry or proposal regarding an Alternative Transaction involving such No-Shop Party or any of its Subsidiaries (an “Acquisition Proposal, ”); (ii) furnish participate in any information discussions or negotiations regarding any of the Acquired Corporations to any Person in connection with an Alternative Transaction; or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter agreement regarding any Alternative Transaction. Notwithstanding the foregoing, a No-Shop Party shall be permitted, prior to the obtaining of intent or the Stockholder Approval of such No-Shop Party, and subject to first entering into a confidentiality agreement with the Person proposing such Acquisition Proposal on terms substantially similar document or any Contract contemplating or otherwise relating to, and no less favorable to any such No-Shop Party than, those contained in the Confidentiality Agreement, to (i) furnish information (including non-public information) concerning such No-Shop Party and its Subsidiaries to the Person making such Acquisition TransactionProposal and its Representatives and afford such Person and its Representatives access to the business, properties, assets, Contracts, officers, employees, books and records of such No-Shop Party and its Subsidiaries; provided, however, that prior to such No-Shop Party shall substantially concurrently with the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished delivery to such Person by provide to the Other Party any non-public information or on behalf of access that is provided or made available to such Person or its Representatives unless such information or access has been previously been provided or made available to the Company, Other Party; and (4ii) prior to furnishing any such nonpublic information consider and participate in discussions and negotiations with respect to such PersonAcquisition Proposal received by such No-Shop Party, the Company furnishes such nonpublic information to Parent (in each case, if and only to the extent that (A) such nonpublic information has Acquisition Proposal is an unsolicited, bona fide written Acquisition Proposal made after the date of this Agreement; (B) such Acquisition Proposal did not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute result from a breach of this Section 4.3 by 6.11(a), and (C) the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors such No-Shop Party reasonably determines in good faith (after consultation with outside legal counsel) that such Acquisition Proposal is, or is reasonably expected likely to consider lead to, a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Contango Oil & Gas Co), Agreement and Plan of Merger (Crimson Exploration Inc.)
No Solicitation. (a) From Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Article VII, the Company shall not directly or indirectlyand its subsidiaries will not, and shall not nor will they authorize or permit any subsidiary of the Company their respective officers, directors, affiliates or employees or any Representative of investment banker, attorney or other advisor or representative retained by any of the Acquired Corporations them to, directly or indirectly toindirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, nothing contained in this Section 4.3(a) 5.4 shall not prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information regarding to the Acquired Corporations toparty making such Acquisition Proposal, or entering into discussions withand submitting to the party making such Acquisition Proposal written questions, any Person in response the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer submitted by such Person Offer, to the extent that (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2A) the Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable lawlaw require it to do so, (3B) prior to (x) concurrently with furnishing any such nonpublic information to, or entering into discussions with, written questions to such Personparty, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information toinformation, or enter into discussions with, written questions to such Person, party and (y) the Company receives from such Person party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (4C) prior to contemporaneously with furnishing any such nonpublic information to such Personparty, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is understood that any violation of any of the restrictions set forth in the preceding sentence two sentences by any Representative officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Acquired Corporations, whether Company or not such Representative is purporting to act on behalf of any of the Acquired Corporations, its subsidiaries shall be deemed to constitute be a breach of this Section 4.3 5.4 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Palm Inc), Agreement and Plan of Reorganization (Extended Systems Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectlyindirectly do, and shall not authorize or permit any subsidiary of the Company or any ensure that no Representative of any of the Acquired Corporations directly or indirectly todoes, any of the following: (i) solicit, initiate, encourage knowingly encourage, induce or induce knowingly facilitate the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Company Shareholder Stockholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or entering enter into discussions or conduct negotiations with, any Person such Person, in response to a Superior Offer submitted by such Person the case of each of (A) and not withdrawn(B) if if: (1) neither the Company nor such Acquisition Proposal shall not have arisen directly or indirectly from any Representative breach of any of the Acquired Corporations shall have violated any of the restrictions provisions set forth in this Section 4.3, ; (2) the Board board of Directors of the Company concludes directors determines in good faithfaith by majority vote, based upon after having considered the advice of its the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action is required would be reasonably likely to result in order for the Board a breach of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders ’s stockholders under applicable law, Legal Requirements; (34) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's ’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, ; and (5) the Company receives from such Person an executed confidentiality agreement containing customary limitations on provisions at least as favorable to the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Company as those contained in the Company, Confidentiality Agreement; and (46) prior to concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth that, in the preceding sentence by event any Representative of any of the Acquired Corporations, Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice for purposes of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)this Agreement.
Appears in 2 contracts
Samples: Agreement of Merger (GoRemote Internet Communications, Inc.), Agreement of Merger (Ipass Inc)
No Solicitation. (a) From The Company represents and warrants that it has terminated, and caused its affiliates, and its and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any discussions or negotiations relating to, or that may reasonably be expected to lead to, any Acquisition Proposal and will promptly request the return or destruction of all Confidential Information regarding the Company provided to any third party prior to the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8the terms of any confidentiality agreements entered into in connection with any such Acquisition Proposal. Except as permitted by this Agreement, the Company shall not directly or indirectlynot, and shall not authorize or permit any subsidiary of the Company its officers, directors or employees or any Representative of any of the Acquired Corporations investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectly toindirectly, (i) solicit, initiateinitiate or encourage (including by way of furnishing non-public information), encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action to facilitate, any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to to, an Acquisition Proposal, (ii) furnish participate in any information discussions or negotiations, or otherwise communicate in any way with any Person (other than Parent or MergerCo), regarding an Acquisition Proposal, or (iii) enter into any agreement, arrangement or understanding regarding an Acquisition Proposal or requiring it to abandon, terminate or fail to consummate the Transactions. Notwithstanding the foregoing, at any time prior to the date on which this Agreement is approved by the shareholders of the Acquired Corporations Company at the meeting referred to any Person in connection with or Section 6.3, in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors has in good faith concluded (following the receipt of the advice of its outside counsel and its financial advisor) is, or is reasonably likely to result in a Superior Proposal that did not result from a breach of this Section 6.1, the Company concludes may (x) furnish non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Acquisition Proposal pursuant to a confidentiality agreement at least as restrictive as the terms contained in the Confidentiality Agreement and (y) participate in discussions or negotiations with such Person regarding such Acquisition Proposal, if the Company Board determines in good faith, faith (based upon on the advice of its outside legal counsel, ) that failing to take such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to would constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)fiduciary duties under applicable law.
Appears in 2 contracts
Samples: Iv Agreement and Plan of Merger (Inverness Medical Innovations Inc), Agreement and Plan of Merger (Ostex International Inc /Wa/)
No Solicitation. (a) From Subject to the date provisions of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 85.3 set forth below, the Company agrees that neither it nor any Subsidiary of the Company shall, and that it shall direct and use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, initiate or knowingly encourage or induce knowingly facilitate any inquiry with respect to, or the making, submission or announcement of of, any Acquisition Alternative Proposal (as hereinafter defined), (ii) enter into or participate in any negotiations with any person (other than Parent and its Representatives) regarding, or furnish any nonpublic information or access to any person (other than Parent and its Representatives) with respect to, any Alternative Proposal or take any action inquiry or proposal that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Alternative Proposal, (iii) engage in discussions regarding an Alternative Proposal with any Person with respect person that has made or, to the Company’s knowledge, is considering making an Alternative Proposal, except to notify any Acquisition Proposalperson that has submitted an Alternative Proposal as to the existence of the provisions of this Section 5.3, (iv) approve, endorse or recommend or propose to approve, endorse or recommend any Acquisition Alternative Proposal or (v) enter into any letter of intent or similar document agreement in principle or any Contract contemplating agreement (whether written or otherwise relating oral, binding or nonbinding) providing for any Alternative Proposal (except for confidentiality agreements permitted under Section 5.3(b)). The Company shall immediately cease any discussions or negotiations with any person with respect to any Acquisition Transaction; provided, however, that an Alternative Proposal or potential Alternative Proposal and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the approval date of this Agreement) or otherwise request, any Person that has executed a confidentiality or non-disclosure agreement within the twenty four (24)-month period prior to the date of this Agreement by in connection with any actual or potential Alternative Proposal to return or destroy all such information or documents or material incorporating confidential information in the Required possession of such Person or its Representatives. The Company Shareholder Vote, this Section 4.3(a) and its Subsidiaries shall not prohibit release any third party from, or waive, amend or modify any provision of, or grant permission under, (x) any standstill provision in any agreement to which the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person of its Subsidiaries is a party or (y) any confidentiality provision in response any agreement to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither which the Company nor any Representative of or any of its Subsidiaries is a party other than, with respect to clause (x), to the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) extent the Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its financial advisors and outside legal counsel, that the failure to take such action is required would be reasonably likely to result in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)fiduciary duties under applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Dresser-Rand Group Inc.)
No Solicitation. During the period (athe “No-Solicitation Period”) From commencing as of the date of this Agreement until and ending on the earlier to occur of (a) the Effective Time or termination of this Agreement pursuant to Section 8and (b) the Closing, the Company Conexant shall not and shall cause Newport Fab LLC and Conexant’s and Newport Fab LLC’s respective Representatives not to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) enter into, solicit, initiateinitiate or continue any discussions or negotiations with, or encourage or induce respond to any inquiries or proposals by, or participate in any negotiations with, or provide any information to, or otherwise cooperate in any other way with, any Person, other than Carlyle and its Representatives, concerning any sale, lease, or license of all or any substantial portion of the makingWafer Fabrication Operations or the Contributed Assets, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish provide any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, Contributed Assets or entering into discussions with, the Wafer Fabrication Operations to any Person in response to any proposal described in clause (i) above, provided however, that Conexant shall not be prohibited from providing nonpublic information regarding the Contributed Assets or the Wafer Fabrication Operations to any Person who is considering the acquisition of all or substantially all of the assets of Conexant or the acquisition of beneficial ownership of 50% or more of the capital stock of Conexant, provided that such third party enters into a Superior Offer submitted non-disclosure agreement with Conexant which provides that the Company is a third party beneficiary of those provisions contained in such non-disclosure agreement that relate to the non-disclosure of nonpublic information related to the Wafer Fabrication Operations or the Contributed Assets. Conexant shall promptly notify Carlyle of the material terms of any inquiry, proposal, or offer received by such the Conexant Group Companies during the No-Solicitation Period from any Person (and not withdrawn) if (1) neither other than the Company nor any Representative or Carlyle) solely related to the acquisition, lease, license or transfer of any all or a material portion of the Acquired Corporations shall have violated any of Contributed Assets or the restrictions set forth in this Section 4.3Wafer Fabrication Operations including, (2) the Board of Directors of the Company concludes in good faithwithout limitation, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information toprospective purchaser or soliciting party, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (except to the extent that any such nonpublic information has not been previously furnished by the Company to Parent)notification would violate any existing agreement of Conexant. Without limiting the generality of Notwithstanding the foregoing, Conexant shall have no obligation to disclose to any Person the Company acknowledges and agrees that any violation existence of any inquiry, proposal or offer received by Conexant relating to the acquisition of all or substantially all of the restrictions set forth in assets of Conexant or the preceding sentence by any Representative acquisition of any beneficial ownership of 50% or more of the Acquired Corporations, whether or not such Representative is purporting to act on behalf capital stock of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Conexant.
Appears in 2 contracts
Samples: Contribution Agreement (Jazz Semiconductor Inc), Contribution Agreement (Jazz Semiconductor Inc)
No Solicitation. (a) From the date of this Agreement hereof until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8hereof, the Company agrees that neither it nor any of its Subsidiaries nor any of the officers or directors of it or any of its Subsidiaries shall, and that it shall direct and use its best reasonable efforts to cause its and its Subsidiaries' officers, directors, employees, investment bankers, consultants and other agents not to, directly or indirectly, and shall not authorize or permit take any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) action to solicit, initiate, encourage or induce facilitate the making, submission or announcement making of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection inquiry with respect thereto or in response to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person person with respect thereto, or disclose any non-public information relating to the Company or any of its Subsidiaries, as the case may be, or afford access to the properties, books or records of the Company or any of its Subsidiaries to any person that has made any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, nothing contained in this Section 4.3(a) 5.05 shall not prohibit prevent the Company Company, after providing prior notice thereof to Buyer that it is taking such action, from furnishing nonpublic non-public information regarding the Acquired Corporations to, or entering into discussions or negotiations with, any Person person in response connection with an unsolicited bona fide Acquisition Proposal received from such person that the Company Board determines in good faith could lead to a Superior Offer submitted by such Person Proposal, so long as (and not withdrawni) if (1) neither the Company nor any Representative of any of has received prior to the Acquired Corporations shall have violated any of date hereof an executed confidentiality agreement or prior to furnishing non-public information to, or entering into discussions or negotiations with, such person, the restrictions set forth Company receives from such person an executed confidentiality agreement with terms no less favorable to the Company than those contained in this Section 4.3, the Parent Confidentiality Agreement and (2ii) the Company Board of Directors of the Company concludes determines in good faith, based upon on such matters that it deems relevant, including the advice of its outside independent legal counsel, that such action is required in order necessary for the Company Board of Directors of the Company to comply with its fiduciary obligations duties to the Company's shareholders under applicable law; provided, (3) prior to furnishing any such nonpublic information tofurther, or entering into discussions with, such Person, that nothing contained in this Agreement shall prevent the Company gives Parent written notice or its board of directors from complying with Rule 14e-2 or 14d-9 under the identity of such Person and of the Company's intention 1934 Act with regard to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Snyder Communications Inc), Agreement and Plan of Merger (Zuckerman Mortimer B)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Article VII, the Company shall not directly or indirectlyand its Subsidiaries will not, and shall not nor will they authorize or permit any subsidiary of the Company their respective officers, directors, affiliates or employees or any Representative of investment banker, attorney or other advisor or representative retained by any of the Acquired Corporations them to, directly or indirectly toindirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as defined below), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non- public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person person with respect to any Acquisition Proposal, (iv) subject to Section 5.2(c), approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise contract relating to any Acquisition TransactionTransaction (as defined below); provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a5.4(a) shall not prohibit the Company or its Board of Directors from (A) providing access to the properties, books and records of the Company and its Subsidiaries to, furnishing nonpublic information regarding the Acquired Corporations Company and its Subsidiaries to, entering into a confidentiality agreement with or entering into discussions with, any Person person or group in response to a Superior Offer submitted by such Person person or group (and not withdrawn), (B) if taking the actions described in Section 5.2(c) as permitted thereby, (C) recommending a Superior Offer to Company’s shareholders or (D) terminating this Agreement pursuant to Section 7.1(b) in order to immediately thereafter enter into a definitive agreement with respect to such Superior Offer, if, in the case of either (A), (B), (C) or (D), (1) neither the Company nor any Representative representative of any of the Acquired Corporations Company and its Subsidiaries shall have violated any of the restrictions set forth in this Section 4.35.4, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required necessary in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's ’s shareholders under applicable law, (3) (x) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Personperson or group, the Company gives Parent written notice of the identity of such Person person or group and of the Company's ’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, person or group and (y) the Company receives from such Person person or group an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person person or group by or on behalf of the Company, and (4) prior to contemporaneously with furnishing any such nonpublic information to such Personperson or group, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, Nothing in this Section 5.4(a) shall prevent the Company acknowledges and agrees that any or its Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal with respect to which no violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company 5.4 shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and have occurred or (ii) approving the sale and issuance of shares of Company Common Stock in connection with a financing of the Company in an amount not recommend a Superior Offer exceeding or equal to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).20%
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Dynamic Health Products Inc), Agreement and Plan of Reorganization (GeoPharma, Inc.)
No Solicitation. (a) From Company agrees that, during the date term of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Agreement, the Company it shall not directly or indirectlynot, and shall not authorize or permit any subsidiary of the Company its subsidiaries or any Representative of any of the Acquired Corporations its or its subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly indirectly, to, : (i) solicit, initiate, encourage or induce facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making, submission or announcement making of any Acquisition Proposal proposal with respect to any recapitalization, merger, consolidation or take other business combination involving Company, or acquisition of 10% or more of the capital stock or any action that could reasonably be expected material portion of the assets (except as set forth in Section 5.3(d) to lead to an Acquisition Proposalthe Company Disclosure Schedule and except for acquisition of assets in the ordinary course of business consistent with past practice) of Company, or any combination of the foregoing ("Company Competing Transaction"); (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with negotiate, explore or in response to an Acquisition Proposal, (iii) otherwise engage in discussions with any Person person (other than Parent, Subcorp or their respective directors, officers, A-22 28 employees, agents and representatives) with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal Company Competing Transaction; or (viii) enter into any letter of intent agreement, arrangement or similar document understanding requiring it to abandon, terminate or fail to consummate the Merger or any Contract contemplating or otherwise relating to any Acquisition Transactionother transactions contemplated by this Agreement; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, nothing contained in this Section 4.3(a5.3(d) shall not prohibit the Board of Directors of Company from (i) furnishing nonpublic information regarding to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to Company than the Acquired Corporations to, Confidentiality Agreement) or entering into discussions withor negotiations with any person or group that makes an unsolicited bona fide written proposal for a Company Competing Transaction (an "Alternative Proposal"), any Person in response if, and only to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3extent that, (2A) the Board of Directors of the Company concludes in good faithCompany, based upon the advice written opinion of its outside legal counselcounsel (a copy of which shall be provided promptly to Parent), determines in good faith that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations duties to shareholders imposed by law, (B) such Alternative Proposal is not conditioned on the receipt of financing, the Board of Directors has reasonably concluded in good faith that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and that such Acquisition Proposal is more favorable to the Company's shareholders under applicable lawthan the Merger, and the Board of Directors has received a written opinion from a nationally-recognized investment banking firm (a copy of which shall be provided promptly to Parent) to the effect that the consideration to be received by shareholders of Company in connection with such Alternative Proposal is superior, from a financial point of view, to the consideration to be received by them in the Merger, (3C) prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Personperson or entity, the Company gives Parent provides written notice of to Parent to the identity of such Person and of the Company's intention to furnish nonpublic effect that it is furnishing information to, or enter entering into discussions negotiations with, such Person, and the (D) Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf keeps Parent informed of the Company, status and (4) prior all material information with respect to furnishing any such nonpublic information to such Persondiscussions or negotiations, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) belowe).
Appears in 2 contracts
Samples: Exhibit A (Southdown Inc), Exhibit A (Southdown Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectly, and shall not authorize cause the Acquired Companies and its and their respective Representatives to immediately cease any and all existing discussions, communications or permit negotiations with any subsidiary of the Company Persons (other than Parent, Merger Sub and their Representatives) conducted heretofore with respect to, or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could would reasonably be expected to lead to to, an Acquisition Proposal. The Company shall promptly (but in no event later than two (2) Business Days after the date of this Agreement) revoke, terminate or withdraw access of any Person (iiother than Parent, Merger Sub and their Representatives) furnish to any data room (virtual or actual) containing any non-public information regarding any of with respect to the Company or the Acquired Corporations to any Person Companies in connection with or in response to an Acquisition Proposal, (iii) engage in discussions . The Company shall immediately demand that each Person which has heretofore executed a confidentiality agreement with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document it or any Contract contemplating of its affiliates or otherwise relating any Acquired Company or any of their respective affiliates or Representatives pursuant to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit which the Company from furnishing nonpublic provided confidential information regarding the Acquired Corporations toCompanies after August 31, 2014 in connection with such Person’s consideration of a possible Acquisition Proposal to immediately return or entering into discussions with, any Person destroy (and have such destruction certified in response to a Superior Offer submitted writing by such Person (and not withdrawn) if (1) neither to the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2hereunder) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic all confidential information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information heretofore furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information Acquired Company or any of their respective affiliates or Representatives to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of Person or any of the restrictions set forth in the preceding sentence by any Representative of such Person’s affiliates or Subsidiaries or any of the Acquired Corporations, whether such Person’s or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent Person’s affiliates’ or Subsidiaries’ Representatives in connection with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt such Person’s consideration of a copy of such Superior Offer (pursuant to Section 4.3(b) below)possible Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement of Merger (Mellanox Technologies, Ltd.), Agreement of Merger (Ezchip Semiconductor LTD)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the Company Glyko shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations Glyko directly or indirectly to, : (i) solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, ; (ii) furnish any confidential information regarding any of the Acquired Corporations Glyko to any Person in connection with or in response to an Acquisition Proposal, ; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, ; (iv) approve, endorse or recommend any Acquisition Proposal Proposal; or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the adoption and approval of this Agreement the Arrangement by the Required Company Glyko Shareholder Vote, Glyko and its Representatives shall not be prohibited by (and shall not be considered to have violated) this Section 4.3(a6.2(a) shall not prohibit the Company from (A) furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, Glyko to any Person in response to a Superior Offer an Acquisition Proposal that is submitted by such Person (and not withdrawn), or (B) entering into discussions with any Person in response to an Acquisition Proposal that is submitted by such Person (and not withdrawn), if (1) in the case of clause (A) above, the Board of Directors of Glyko has first made a good faith determination that the furnishing of such nonpublic information to such Person is reasonably likely to lead to the submission of a Superior Offer from such Person, (2) neither the Company Glyko nor any Representative of any of the Acquired Corporations Glyko shall have violated any of the restrictions set forth in this Section 4.36.2(a), (23) the Board of Directors of the Company Glyko concludes in good faith, based upon the advice of its outside legal counsel, that the failure to take such action is required in order for the Board of Directors of the Company to comply inconsistent with its fiduciary obligations to the Company's shareholders under applicable law, (34) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company Glyko gives Parent BioMarin written notice of the identity of such Person and of the CompanyGlyko's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company Glyko receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Glyko and following which, Glyko keeps BioMarin fully informed with respect to the Companystatus of any such Acquisition Proposal and any modification or proposed modification thereto, and (45) prior to furnishing any such nonpublic information to such Person, the Company Glyko furnishes such nonpublic information to Parent BioMarin (to the extent such nonpublic information has not been previously furnished by the Company Glyko to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) belowBioMarin).
Appears in 2 contracts
Samples: Acquisition Agreement (Glyko Biomedical LTD), Plan of Arrangement (Biomarin Pharmaceutical Inc)
No Solicitation. (a) From the date The Company and each of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8its Subsidiaries and affiliates shall not, the Company shall not directly or indirectly, and shall not authorize through any officer, director, employee, representative or permit any subsidiary agent of the Company or any Representative of any of the Acquired Corporations its Subsidiaries (and it shall use reasonable efforts to cause such officers, directors, employees, representatives and agents not to, directly or indirectly toindirectly), (i) solicit, initiate, resume, facilitate or encourage any inquiries or induce the makingproposals that constitute, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to to, an Acquisition Proposal, Proposal (as defined below) or (ii) furnish engage in negotiations or discussions concerning, or provide any non-public information regarding any of the Acquired Corporations to any Person in connection with person or in response to an Acquisition Proposalentity relating to, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that if, at any time prior to the approval date of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding Stockholders Meeting (the Acquired Corporations to“Applicable Period”), or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes determines in good faith, based upon after receiving the advice of its outside legal counsel, that such action it is required to do so in order for the Board of Directors of the Company to comply with its fiduciary obligations duties to the Company's shareholders ’s stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person may, in response to a Superior Proposal (as defined in Section 6.2(b)) which was not solicited by it and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives which did not otherwise result from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition 6.2(a), and subject to providing prior written notice of its decision to take such action to Parent (a “Section 6.2 Notice”) and compliance with Section 6.2(c), (x) furnish information with respect to the foregoing, Company and its Subsidiaries to any person making a Superior Proposal pursuant to a confidentiality agreement containing terms no less favorable to the Company shall (iincluding with respect to standstill or other provisions) provide Parent with at least twenty-four than the Confidentiality Agreement and permitting the disclosure contemplated by this Section 6.2 and (24y) hours prior notice participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business that constitutes 25% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, or 25% or more of any meeting class of equity securities of the Company's Board Company or any of Directors at which its Subsidiaries, any tender offer or exchange offer that, if consummated, would result in any person beneficially owning 25% or more of any class of equity securities of the Company's Board Company or any of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period Subsidiaries, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of not less its Subsidiaries, other than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Emc Corp), Agreement and Plan of Merger (Legato Systems Inc)
No Solicitation. (a) From the date The Company shall, and shall cause each of this Agreement until the earlier its Subsidiaries, and shall cause their respective officers, directors, representatives and agents (including any investment banker, attorney or accountant retained by it or any of the Effective Time its Subsidiaries) (collectively, “Company Representatives”) to, (i) immediately cease any existing discussions or termination of this Agreement pursuant negotiations, if any, with any third Person that may be ongoing with respect to Section 8any actual or potential Acquisition Proposal and (ii) with respect to parties with whom discussions have been terminated, the Company shall not directly use its reasonable best efforts to obtain the return or indirectlythe destruction of, in accordance with the terms of the applicable confidentiality agreement, confidential information previously furnished by the Company, its Subsidiaries or Company Representatives. The Company and its Subsidiaries shall not, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations to, directly or indirectly toindirectly, (i) solicit, initiate, initiate or knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations or disclose to any third Person in connection non-public information with or in response respect to an Acquisition Proposal, (iii) negotiate or engage in discussions with any third Person with respect to any an Acquisition Proposal, Proposal (other than to advise such Person of the Company’s obligations under this Section 5.10) or (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent agreement (whether or similar document not binding) or any Contract contemplating agreement in principle with respect to, or otherwise relating to any approve or recommend, an Acquisition TransactionProposal; provided, however, that at any time prior to the obtaining approval of this Agreement the Merger by the Company Required Company Shareholder VoteVote (but not thereafter), this Section 4.3(a) shall in response to a bona fide written Acquisition Proposal that was not prohibit solicited by the Company from or any of its Representatives and which the Company Board determines in good faith, after consulting with its financial advisors and outside legal counsel, constitutes, or could reasonably be expected to lead to, a Superior Proposal, the Company may (A) furnish information with respect to the Company, its Subsidiaries and the Affiliated Medical Practices to the Person making such Acquisition Proposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives), and (B) participate in discussions or negotiations with, and provide draft documents and agreements to, the Person making such Acquisition Proposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) regarding such Acquisition Proposal, if (prior to furnishing nonpublic such information regarding the Acquired Corporations to, or entering into such discussions or negotiations with, any Person in response to a Superior Offer submitted by such Person (and not withdrawnPerson) if the Company (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company provides reasonable prior notice to comply with its fiduciary obligations Parent to the Company's shareholders under applicable law, (3) prior to effect that it is furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of Person (but excluding the identity of such Person), (2) provides Parent with all information to be provided to such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Personwhich Parent has not previously been provided, and the Company (3) receives from such Person an executed confidentiality agreement containing customary limitations on reasonably satisfactory to the use Company Board and disclosure of all nonpublic written with terms substantially similar to and oral information furnished no less favorable to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of aggregate, than those contained in the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Confidentiality Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Viking Holdings LLC), Agreement and Plan of Merger (Virtual Radiologic CORP)
No Solicitation. (a) From Stockholder covenants and agrees that, during the period commencing on the date of this Voting Agreement until and ending on the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Expiration Date, the Company Stockholder shall not directly or indirectlynot, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly Stockholder, to, : (i) solicit, initiate, initiate or encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations Company to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or other similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; providedPROVIDED, howeverHOWEVER, that prior that: (A) nothing herein shall prohibit the Stockholder from disclosing, or causing the Company to disclose, to the approval Company's stockholders a position with respect to a tender offer pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act; (B) nothing herein shall prohibit Stockholder from making any disclosure to the Company's Stockholders if, in the good faith judgment of this Agreement the Stockholder after consultation with its outside legal counsel, failure to so disclose would be inconsistent with applicable laws; and (C) the Stockholder shall not be prohibited by the Required Company Shareholder Vote, this Section 4.3(a5 from (x) shall not prohibit the Company from furnishing or causing to be furnished nonpublic information regarding the Acquired Corporations toCompany to any Person in response to an Acquisition Proposal that is submitted by such Person (and not withdrawn), or (y) entering into discussions with, with any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).that
Appears in 2 contracts
Samples: Voting Agreement (Gene Logic Inc), Voting Agreement (Gene Logic Inc)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Article VIII, the Company shall not directly or indirectlyand its subsidiaries will not, and shall not nor will they authorize or permit any subsidiary of the Company their respective officers, directors, affiliates or employees or any Representative of investment banker, attorney or other advisor or representative retained by any of the Acquired Corporations them to, directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as defined below), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person person with respect to any Acquisition Proposal, (iv) subject to Section 5.2(c), approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionTransaction (as defined below); provided, however, that prior between the date on which the Circular is mailed to the approval shareholders of Company and the date on which this Agreement is approved by the Required required Company Shareholder Vote, this Section 4.3(a6.2(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations Company and its subsidiaries to, entering into a confidentiality agreement with or entering into discussions with, any Person person or group in response to a Superior Offer submitted by such Person person or group (and not withdrawn) if (1) neither the Company nor any Representative representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).its
Appears in 2 contracts
Samples: Voting Agreement (Peregrine Systems Inc), Acquisition Agreement (Peregrine Systems Inc)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Article VII, the Company shall not directly or indirectlyand its subsidiaries will not, and shall not nor will they authorize or permit any subsidiary of the Company their respective officers or directors or any Representative of investment banker, attorney or other advisor or representative retained by any of the Acquired Corporations them to, nor will they authorize any of their respective employees or affiliates to, nor will they fail to take reasonable measures to cause their respective employees not to, directly or indirectly to, (i) solicit, initiate, solicit or initiate or knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal (as defined below), (ii) participate in any discussions or negotiations regarding, or knowingly furnish to any person any information with respect to, or knowingly take any other action that could would reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal without complying with Section 5.2(c) or (viv) enter into any letter of intent or similar document or any Contract contemplating contract, agreement or otherwise relating to commitment providing for any Acquisition TransactionTransaction (as defined below); provided, however, that this Agreement shall not prohibit Company or any of its officers, directors, affiliates, employees, investment bankers, attorneys or other advisors or representatives from (A) at any time prior to the approval adoption of this Agreement by the Required Company Shareholder VoteCompany's stockholders, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations Company to, entering into a confidentiality agreement with, entering into discussions or negotiations with, or entering into discussions with, a definitive acquisition agreement with any Person person or group in response to a Superior Offer submitted by such Person person or group (and not withdrawn) if (1) neither the Company nor any Representative representative of any of the Acquired Corporations Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 4.35.4 prior to and in connection with such Acquisition Proposal, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders stockholders under applicable law, (3) (x) at least forty-eight (48) hours prior to furnishing any such nonpublic information to, entering into a confidentiality agreement with or entering into discussions or negotiations with, such Personperson or group, the Company gives Parent written notice of the identity of such Person person or group and of the Company's intention to furnish nonpublic information to, or enter into discussions with, take such Person, action and the (y) Company receives from such Person person or group an executed agreement with confidentiality agreement containing customary limitations on provisions at least as restrictive as the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the CompanyConfidentiality Agreement, and (4) prior to contemporaneously with furnishing any such nonpublic information to such Personperson or group, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting ) or (B) complying with Rule 14d-9 or Rule 14e-2 promulgated under the generality Exchange Act or furnishing a copy or excerpts of the foregoingthis Agreement (excluding, however, the Company acknowledges Schedule and agrees that the Parent Schedule) to any violation of person. Company and its subsidiaries will immediately cease any of the restrictions set forth in the preceding sentence by and all existing activities, discussions or negotiations with any Representative of parties conducted heretofore with respect to any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the CompanyAcquisition Proposal. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice (or such lesser prior notice as provided to the members of Company's Board of Directors) of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not provide Parent with at least two (2) business days prior written notice (or such lesser prior notice as provided to the members of Company's Board of Directors) of a meeting of Company's Board of Directors at which Company's Board of Directors is reasonably expected to recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of stockholders and together with such notice a copy of any definitive documentation relating to such Superior Offer (pursuant to Section 4.3(b) below)Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (PMC Sierra Inc), Agreement and Plan of Reorganization (Quantum Effect Devices Inc)
No Solicitation. After the No-Shop Period Start Date, no Stockholder (a) From the date of this Agreement until the earlier in its capacity as a stockholder of the Effective Time or termination of this Agreement pursuant to Section 8, the Company Company) shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal; (ii) furnish to any Person (other than to Parent or any designees of Parent) any non-public information relating to the Company Group or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company Group (other than Parent or any designees of Parent), in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal or take any action inquiries or the making of any proposal that could would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, ; (iii) participate or engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any an Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by other than informing such Person (and not withdrawn) if (1) neither the Company nor any Representative of any Persons of the Acquired Corporations shall have violated any of the restrictions set forth provisions contained in this Section 4.3, 3.2 and contacting the Person making the Acquisition Proposal to the extent necessary to clarify the terms of the Acquisition Proposal); provided that each Stockholder may participate in discussions and negotiations with any Person with whom the Company Board (2) or the Board of Directors Special Committee of the Company concludes Board) is engaging in good faithdiscussions and negotiations pursuant to and in compliance with Section 5.3 of the Merger Agreement, based upon the advice of its outside legal counsel, that such action is required in order solely for the Board purpose of Directors of the Company to comply entering into a voting agreement with its fiduciary obligations such party on substantially similar terms to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)terms hereof.
Appears in 2 contracts
Samples: Voting Agreement (Vista Equity Partners Fund Viii, L.P.), Voting Agreement (Accenture PLC)
No Solicitation. (a) From the date of Unless and until this Agreement until the earlier of the Effective Time or termination of this Agreement shall have been terminated pursuant to Section 88.1, the Company shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage encourage, induce or induce facilitate the making, submission or announcement of any Acquisition Proposal (including by granting any waiver under Section 203 of the DGCL) or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or any inquiry or indication of interest that could lead to an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval acceptance of this Agreement by shares of Company Common Stock pursuant to the Required Company Shareholder VoteOffer, this Section 4.3(a5.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated breached or taken any action inconsistent with any of the restrictions provisions set forth in this Section 4.35.3, (2) the Board of Directors of the Company concludes in good faith, based upon after having taken into account the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders stockholders under applicable law, (3) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the CompanyCompany and containing customary "standstill" provisions, and (4) at least two business days prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of action inconsistent with any of the restrictions provisions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 5.3 by the Company. In addition to Notwithstanding the foregoing, nothing contained in this Section 5.3(a) shall prohibit the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of or the Company's Board of Directors at which from taking and disclosing to the Company's Board of Directors is reasonably expected stockholders a position with respect to consider a Superior Offer and (ii) not recommend tender or exchange offer by a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (third party pursuant to Section 4.3(bRules 14d-9 and 14e-2(a) below)promulgated under the Exchange Act.
Appears in 2 contracts
Samples: Ii Agreement and Plan of Merger (Cubic Corp /De/), Agreement and Plan of Merger (Ecc International Corp)
No Solicitation. (a) From the date of this Agreement until the earlier of The Company agrees that, prior to the Effective Time or termination of this Agreement pursuant to Section 8Time, the Company it shall not directly or indirectlynot, and shall not authorize or permit any subsidiary of its subsidiaries or any of its or its subsidiaries' directors, officers, employees, investment bankers, attorneys or other agents or representatives to directly or indirectly, solicit, initiate or encourage any inquiries or the making of any proposal or provide any information about the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations its subsidiaries with respect to any Person in connection with merger, consolidation or in response to an Acquisition Proposalother business combination involving the Company or its subsidiaries or their respective assets or capital stock (a "TAKEOVER PROPOSAL") or negotiate, (iii) explore or otherwise engage in discussions with any Person corporation, partnership, person or other entity or group (other than Merger Sub, any of its affiliates or representatives) (collectively, a "PERSON") with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Takeover Proposal or (v) enter into any letter of intent agreement, arrangement or similar document understanding requiring it to abandon, terminate or fail to consummate the Merger or any Contract contemplating or otherwise relating to any Acquisition Transactionother transactions contemplated by this Agreement; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes or the Special Committee determines in good faith, based upon the advice of its after consultation with outside legal counsel, that such action it is required advisable to do so in order for to act in a manner consistent with its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to what the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable lawin good faith reasonably believes may be a Superior Proposal (as defined below), (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person which proposal was not solicited by it and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives which did not otherwise result from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by 6.04, and subject to providing prior written notice of its decision to take such action to Merger Sub and compliance with the Company. In addition to the foregoingother requirements of this Section 6.04, the Company shall (i) provide Parent furnish information with at least twenty-four (24) hours prior notice of respect to the Company and its subsidiaries to any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider Person making a Superior Offer Proposal pursuant to a customary confidentiality agreement and (ii) participate in discussions or negotiations regarding and execute any agreements (including but not recommend a Superior Offer limited to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of any Acquisition Agreement), in connection with such Superior Offer (pursuant to Section 4.3(b) below)Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Buckley Evan R), Agreement and Plan of Merger (BNMC Acquisition Co)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, or knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal or knowingly take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal Proposal, or (v) enter into any letter of intent or similar document or any Contract contemplating having a primary purpose of effectuating, or otherwise relating to which would effect, any Acquisition Transaction; provided, however, that prior to the approval adoption of this Agreement by the Required Company Shareholder Stockholder Vote, this Section 4.3(a4.2(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither such Superior Offer shall not have been received as the Company nor any Representative result of a breach of any of the Acquired Corporations shall have violated any of the restrictions provisions set forth in this Section 4.34.2, (2) the Board board of Directors directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board board of Directors directors of the Company to comply with its fiduciary obligations to the Company's shareholders stockholders under applicable law, (3) at least 48 hours prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on provisions no less favorable in the use aggregate to the Company than those contained in the Mutual Nondisclosure Agreement dated March 16, 2000 between Parent and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the CompanyCompany (the "Nondisclosure Agreement"), and (4) prior to contemporaneously with furnishing any such additional nonpublic information to such Person, the Company furnishes such additional nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)) provided, that this Section 4.2(a) shall not prohibit the Company's board of directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act or making any disclosure to the Company's stockholders that is required by law. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 4.2 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Exhibit 1 (Applied Micro Circuits Corp), Agreement and Plan of Merger (Applied Micro Circuits Corp)
No Solicitation. (a) From the date of Notwithstanding any provision in this Agreement until to the earlier of the Effective Time or termination of this Agreement pursuant to Section 8contrary, the Company shall not directly or indirectlynot, and nor shall not it authorize or permit any subsidiary of its Subsidiaries to, nor shall it authorize or permit any director, officer or employee of the Company or any Representative of its Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of the Acquired Corporations its Subsidiaries to, directly or indirectly (and it shall instruct and cause each applicable Subsidiary, if any, to instruct each such director, officer, employee, investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries not to), (i) solicit, initiateinitiate or knowingly encourage, encourage or induce knowingly take any other action to facilitate, any Takeover Proposal or any inquiries or the making, submission or announcement making of any Acquisition proposal that constitutes or could reasonably be expected to lead to a Takeover Proposal or take (ii) enter into, continue or otherwise participate in any action discussions or negotiations regarding, or furnish to any person any confidential information that could reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to knowingly cooperate in any Acquisition Transactionway with, any Takeover Proposal; provided, however, that at any time prior to obtaining the approval of this Agreement by the Required Company Shareholder VoteStockholder Approval, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) bona fide unsolicited written Takeover Proposal that the Board of Directors of the Company concludes determines in good faithfaith constitutes or could reasonably be expected to lead to a Superior Proposal, based upon the advice and which unsolicited Takeover Proposal did not result from a breach of its outside legal counsel, that such action is required in order for the Board this Section 4.02 or any other provision of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Personthis Agreement, the Company gives Parent written notice of the identity of such Person may, and of the Company's intention to furnish nonpublic information may permit and authorize its Subsidiaries and its representatives and advisors and its Subsidiaries’ representatives and advisors to, or enter into discussions within each case subject to compliance with Section 4.02(c) and the other provisions of this Agreement, (A) furnish information with respect to the Company and its Subsidiaries to the person making such PersonTakeover Proposal (and its representatives and advisors) pursuant to a confidentiality agreement which contains terms that are no less restrictive than those contained in the Agreement for Exchange of Confidential Information, Agreement Number WH15001, dated as of May 27, 2015 between Parent and the Company receives (as it may be amended from time to time, the “Confidentiality Agreement”); provided that all such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished had been provided or made available, or is substantially concurrently provided or made available, to such Person by or on behalf of the CompanyParent, and (4B) prior to furnishing any such nonpublic information to such Personparticipate in discussions or negotiations with, and only with, the Company furnishes person making such nonpublic information to Parent Takeover Proposal (to the extent and its representatives and advisors) regarding such nonpublic information has not been previously furnished by the Company to Parent)Takeover Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is understood that any violation of any of the restrictions set forth in the preceding sentence by any Representative director or officer of the Company or any of its Subsidiaries, any employee of the Acquired Corporations, whether Company or not such Representative is purporting to act on behalf of any of its Subsidiaries that executed an Offer Letter on or prior to the Acquired Corporationsdate hereof or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to constitute be a breach of this Section 4.3 4.02(a) by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Merge Healthcare Inc), Agreement and Plan of Merger (Merge Healthcare Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of SIC and RMAG each agrees that, prior to the Effective Time or termination of this Agreement pursuant to Section 8Time, the Company except as provided below it shall not directly or indirectlynot, and shall not authorize or permit any subsidiary of the Company its directors, officers, employees, agents or any Representative of any of the Acquired Corporations representatives to, directly or indirectly toindirectly, (i) solicit, initiate, facilitate or encourage (including by way of furnishing or induce the makingdisclosing information), submission or announcement of any Acquisition Proposal or take any other action to facilitate, any inquiries or the making of any proposal that could constitutes, or may reasonably be expected to lead to an Acquisition Proposalany Transaction Proposal (as defined below), (ii) furnish or enter into or maintain or continue discussions or negotiate with any information regarding person or entity in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any of the Acquired Corporations to any Person in connection with its officers, directors or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document employees or any Contract contemplating investment banker, financial advisor, attorney, accountant or otherwise relating other representative retained by it to take any Acquisition Transactionsuch action; provided, however, that prior to the approval of nothing contained in this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from SIC or RMAG Boards of Directors, respectively, from, (i) furnishing nonpublic information regarding the Acquired Corporations to, to or entering into discussions withor negotiations with any person or entity that makes an unsolicited written, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither bona fide Transaction Proposal which the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the SIC or RMAG Board of Directors of Directors, as the Company concludes case may be, determines in good faith, based upon the advice of its outside legal counsel, faith that such action is required in order necessary for the SIC or RMAG Board of Directors of the Company to comply with its fiduciary obligations duties to the Company's shareholders under applicable lawlaw or (ii) withdrawing, (3) prior modifying or changing its recommendation referred to furnishing in Section 4.3 if there exists a Transaction Proposal and the SIC or RMAG Board of Directors, as the case may be, and based upon the advise of independent legal counsel, determines in good faith that such action is necessary for the SIC or RMAG Board of Directors to comply with its fiduciary duties to shareholders under applicable law in connection with such Transaction Proposal. SIC or RMAG, as the case may be, shall immediately advise the other parties to this Agreement, orally and in writing, of any such nonpublic information to, inquiries or entering into discussions with, such Personproposals relating to an Transaction Proposal known to it, the Company gives Parent written notice material terms and conditions of such inquiry or proposal, and the identity of the person or entity making such Person and of inquiry or proposal. SIC or RMAG, as the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporationscase may be, shall be deemed give the other parties to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with Agreement at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days advance notice of any information to be supplied to, and at least three (3) days' advance notice of any agreement to be entered into with any person or forty-eight entity making such a proposal for a Transaction Proposal with respect to SIC or RMAG. For purposes of this Agreement, "Transaction Proposal" shall mean any of the following (48other than the transactions between SIC, RMAG and SUB contemplated by this Agreement) hours after Parent's receipt involving SIC or RMAG: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of twenty percent (20%) or more of the assets of SIC or RMAG, in a single transaction or series of transactions; (iii) any offer for, or the acquisition (or right to acquire) of "beneficial ownership" by any person, "group" or entity (as such terms are defined under Section 13(d) of the Securities Exchange Act of 1934), of twenty percent (20%) or more of the outstanding shares of capital stock of SIC or RMAG or the filing of a copy registration statement under the Securities Act in connection therewith; or (iv) any public announcement by SIC of such Superior Offer (pursuant a proposal, plan or intention to Section 4.3(b) below)do any of the foregoing or any agreement to engage in any of the foregoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Registry Magic Inc), Agreement and Plan of Merger (Registry Magic Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectlynot, and shall not authorize or permit any subsidiary of officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative of, the Company or any Representative ("COMPANY REPRESENTATIVES") to, and on becoming aware of any of the Acquired Corporations will take all reasonable actions to stop such person from continuing to, directly or indirectly toindirectly, (i) solicit, initiate, initiate or encourage or induce otherwise intentionally facilitate (including by way of furnishing information) the making, submission or announcement making of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal(as defined below), (ii) furnish enter into any information regarding any of agreement (other than confidentiality and standstill agreements in accordance with the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iiiimmediately following proviso) engage in discussions with any Person with respect to any Acquisition Proposal, or (iviii) approveparticipate in any discussions or negotiations regarding, endorse or recommend furnish to any person any information with respect to, or take any other action to intentionally facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition TransactionProposal; provided, however, that prior in the case of this clause (iii), to the approval of this Agreement extent reasonably believed to be required by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative fiduciary obligations of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes Company, determined in good faithfaith by the members thereof, based upon the advice of its after consultation with outside legal counsel, that the Company may at any time prior to Company Stockholder Approval, but not thereafter if the Merger is approved thereby, and subject to the Company providing written notice to Parent of its decision to take such action is required in order for response and only in response to an unsolicited written request therefor received by the Company or any Company Representative that did not otherwise result from a breach of this SECTION 8.2(a)), (A) furnish information to any person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) pursuant to a confidentiality agreement on substantially the same terms as provided in the Confidentiality Agreements referred to in SECTION 5.2(b) hereof and otherwise enter into discussions and negotiations with such person or group as to any superior proposal (as defined in SECTION 8.2(c)) such person or group has made, or any Acquisition Proposal made by such person or group that the Board of Directors in good faith determines is reasonably likely to lead to a superior proposal. The Company immediately shall cease and shall cause to be terminated any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any parties conducted prior to the date hereof by the Company or any Company Representatives with respect to any Acquisition Proposal existing on the date hereof. For purposes of this Agreement, "ACQUISITION PROPOSAL" means (i) any proposal, other than a proposal by Parent or any of its affiliates, for a merger or other business combination involving the Company, (ii) any proposal or offer, other than a proposal or offer by Parent or any of its affiliates, to acquire from the Company or any of its affiliates in any manner, directly or indirectly, more than a 20% equity interest in the Company, more than 20% of the voting securities of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice a material amount of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf assets of the Company, and or (4iii) prior any proposal or offer, other than a proposal or offer by Parent or any of its affiliates, to furnishing any such nonpublic information to such Person, acquire from the stockholders of the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality tender offer, exchange offer or otherwise more than 20% of the foregoing, the outstanding Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Shares.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Roadway Corp), Agreement and Plan of Merger (Yellow Corp)
No Solicitation. (a) From and after the date of this Agreement hereof and continuing until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 8Article IX, the Company will not, and shall not permit any of its or any of its Subsidiaries' officers or directors to, or authorize any of its or any of its Subsidiaries' employees, attorneys, financial advisors, agents or other representatives to, directly or indirectly, solicit, initiate or knowingly encourage (including by way of furnishing information), or take any other action intended to facilitate, the making of any proposal that constitutes a Takeover Proposal from any Person, or engage in or continue discussions or negotiations with any third party relating to a Takeover Proposal by or involving such third party, nor shall the Company approve the taking of any action prohibited by the provisions of this sentence above. The Company agrees that it will, and shall not authorize will cause its officers, directors and representatives to, immediately cease and cause to be terminated any activities, discussions or permit any subsidiary negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Takeover Proposal. Notwithstanding anything in this Agreement to the contrary, the Company or any Representative and its Board of any of the Acquired Corporations directly or indirectly to, Directors shall be permitted to (i) solicitto the extent applicable, initiate, encourage or induce comply with Rule 14d-9 and Rule 14e-2 promulgated under the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected Exchange Act with respect to lead to an Acquisition a Takeover Proposal, (ii) furnish file a Form 8-K with the SEC with respect to the entering into of this Agreement, including any information regarding exhibits deemed appropriate with respect thereto, or (iii) effect a Change in Company Recommendation during the Window Period, if and only to the extent that, in any such case as is referred to in clause (iii) (A) the Company has received during the Window Period a bona fide written Takeover Proposal from a third party not solicited by the Company in violation of the Acquired Corporations to any Person in connection with or in response to an Acquisition this Section 7.9 and such Takeover Proposal constitutes a Superior Proposal, (iiiB) engage the Company has furnished to Parent a Notice of Superior Proposal in discussions accordance with any Person with respect to any Acquisition Section 7.9(b)(iii) and (C) Parent does not, within 48 hours of Parent's receipt of the Notice of Superior Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior deliver to the approval Company a binding, written offer to acquire 100% of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit equity securities of the Company from furnishing nonpublic information regarding the Acquired Corporations to, (by merger or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawnotherwise) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) that the Board of Directors of the Company concludes determines in its good faith, based upon the faith judgment (after receipt of written advice of its outside legal counsel, that such action is required in order for the Board financial advisor of Directors of the Company nationally recognized reputation) to comply with its fiduciary obligations be at least as favorable to the Company's shareholders under applicable lawstockholders as such Superior Proposal. The Company agrees that it will use its best efforts to promptly inform its directors, (3) prior to furnishing any such nonpublic information toofficers, or entering into discussions withkey employees, such Person, the Company gives Parent written notice agents and representatives of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth obligations undertaken in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)7.9.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Teletech Holdings Inc), Agreement and Plan of Merger (Newgen Results Corp)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly not, nor shall it permit any of its Subsidiaries to, or indirectly, and shall not authorize or permit any subsidiary director, officer or employee of the Company or any Representative of its Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries (collectively, the Acquired Corporations “Representatives”) to, directly or indirectly toindirectly, (i) solicit, initiate, encourage solicit or induce the making, submission or announcement of any Acquisition Proposal initiate or take any other action that could reasonably be expected knowingly to lead to an Acquisition Proposalfacilitate or encourage, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person non-public information with respect to, any Takeover Proposal except to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter notify such Person of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transactionthe existence of this provision; provided, however, that that, at any time prior to obtaining the approval of this Agreement by the Required Company Shareholder VoteApproval, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes may, in good faithresponse to a bona fide unsolicited, based upon written Takeover Proposal made after the advice date of its outside legal counsel, this Agreement that such action is required in order for the Board of Directors of the Company to comply determines in good faith after consultation with its outside legal counsel and financial advisor constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and that did not result from a breach of this Section 4.2, provided the Board of Directors of the Company shall have determined 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 fulfilling its fiduciary obligations to the Company's shareholders duties under applicable law, and subject to compliance with Sections 4.2(c) and (3) prior to furnishing any such nonpublic information tod), or entering into discussions with, such Person, the Company gives and after providing Parent written advance notice of the identity of intention to take such actions (A) furnish information with respect to the Company and its Subsidiaries to the Person (and its representatives) making such Takeover Proposal pursuant to a customary confidentiality agreement no less restrictive on such Person than the confidentiality agreement in effect between the Company and Parent (as it may be amended from time to time, the “Confidentiality Agreement”); provided that all such information not previously provided to Parent is provided on a prior or substantially concurrent basis to Parent, except to the extent such information would be reasonably likely to result in competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated or such disclosure is prohibited by applicable Governmental Entities or pursuant to applicable laws, in each case relating to the exchange of information (“Prohibited Information”), and so long as no information is provided to the Company's intention Person making such Takeover Proposal that would constitute Prohibited Information with respect to furnish nonpublic information to, or enter into discussions with, such Person, and (B) participate in discussions or negotiations with the Company receives from Person (and its representatives) making such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to Takeover Proposal regarding such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)Takeover Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is agreed that any violation of any of the restrictions set forth in the preceding sentence by any Representative or Affiliate of the Company or any of the Acquired Corporationsits Subsidiaries, whether or not such Representative Person is purporting to act on behalf of the Company or any of the Acquired Corporationsits Subsidiaries or otherwise, shall be deemed to constitute be a breach of this Section 4.3 4.2(a) by the Company. In addition to As of the foregoingdate hereof, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice has, and has caused each of any meeting its Subsidiaries and each of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected Representatives to consider a Superior Offer have terminated all discussions or negotiations with all third parties regarding any Takeover Proposal and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).requested the
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Itt Corp), Agreement and Plan of Merger (Edo Corp)
No Solicitation. (a) From the date of this Agreement hereof until the Closing or the earlier of the Effective Time or termination of this Agreement pursuant to Section 8in accordance with its terms, the Company shall not not, directly or indirectlyindirectly through any of its Subsidiaries or affiliates or any of its or their respective Representatives, and shall not authorize or permit any subsidiary of its Subsidiaries or affiliates or any of their respective Representatives to, (1) initiate, solicit or knowingly facilitate or knowingly encourage an Acquisition Proposal or (2) engage with any third party in any discussions or negotiations concerning, or furnish any confidential information to any third party in connection with, an Acquisition Proposal, or any inquiry or proposal that would constitute an Acquisition Proposal if it were a bona fide written proposal or offer (except to notify such third party of the existence of the provisions of this Section 6.08), provided, however, for purposes of this Section 6.08 the term “affiliate” shall not include any Person that becomes an affiliate of the Company or after the date of this Agreement without any Representative of any action on the part of the Acquired Corporations directly or indirectly Company. Notwithstanding anything to the contrary in the previous sentence, prior to the Acceptance Date, the Company may furnish information to, (i) solicitor enter into discussions or negotiations with, initiate, encourage or induce the making, submission or announcement of any Person that has made an Acquisition Proposal if, and only to the extent that: (A) the receipt of such Acquisition Proposal did not result from a breach of (1) clause (1) of the first sentence of this Section 6.08(a) or take (2) any action other provision of this Section 6.08 in any material respect; (B) such Acquisition Proposal constitutes a Superior Proposal or the Company Board, after consulting with the Company’s outside legal and financial advisors, determines in good faith that (1) such Acquisition Proposal, after furnishing such information and entering into such discussions or negotiations, could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person result in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (Proposal and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that failure to take such action is required in order for the Board of Directors of the Company to comply would be inconsistent with its fiduciary obligations to the Company's ’s shareholders under applicable law, Law; and (3C) prior to furnishing any such nonpublic information toinformation, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing on customary limitations on terms that are no less favorable to the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf Company than the terms of the CompanyConfidentiality Agreement; provided, and (4) prior to furnishing any such nonpublic information to such Personhowever, that the Company furnishes may, after making the determination described in clause (B) above, enter into discussions or negotiations solely with respect to entering into such nonpublic information to Parent (to the extent such nonpublic information has confidentiality agreement and will not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a be in breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider 6.08 as a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)result thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Intelligroup Inc), Agreement and Plan of Merger (Intelligroup Inc)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of the date, if any, on which this Agreement pursuant to Section 8, the Company shall not directly or indirectlyis terminated, and except as otherwise provided for in this Agreement, Parent, Empagio and SMB shall not not, and none of them shall authorize or permit any subsidiary of the Company their respective Subsidiaries, directors, officers or employees to, and each of them shall use their reasonable best efforts to cause its investment bankers, financial advisors, attorneys, accountants or other advisors, agents or representatives (collectively, "Representatives") retained by it or any Representative of any of the Acquired Corporations its Subsidiaries not to, directly or indirectly tothrough another Person, (i) solicit, initiateinitiate or knowingly encourage, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action that could designed to, or which would reasonably be expected to lead to an Acquisition Proposalto, facilitate, any Takeover Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposalany information, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to cooperate in any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions way with, any Person Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Stockholder Approval, in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) bona fide written Takeover Proposal that the Board of Directors of the Company concludes Parent determines in good faith, based upon the advice of its faith (after consultation with outside legal counsel, that such action ) constitutes or is required in order for the Board of Directors of the Company reasonably likely to comply with its fiduciary obligations lead to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Persona Superior Proposal, and which Takeover Proposal was not solicited after the Company receives date hereof and was made after the date hereof and did not otherwise result from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by 4.02(a), Parent may, if its Board of Directors determines in good faith (after consultation with outside counsel) that the Company. In addition failure to the foregoingdo so would be reasonably likely to result in a breach of its fiduciary duties to its stockholders under applicable Law, the Company shall and subject to compliance with Section 4.02(b), (i) provide furnish information with respect to it and its Subsidiaries to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (which (A) need not restrict such person from making any unsolicited Takeover Proposal and (B) shall permit Parent to comply with at least twenty-four (24) hours the terms of Section 4.02(c)); provided that all such information has previously been provided to Empagio or SMB, or is provided to Empagio or SMB prior notice of any meeting of to or substantially concurrent with the Company's Board of Directors at which the Company's Board of Directors time it is reasonably expected provided to consider a Superior Offer such Person, and (ii) not recommend a Superior Offer to participate in discussions or negotiations with the person making such Takeover Proposal (and its shareholders for a period of not less than the greater of two (2Representatives) business days or forty-eight (48) hours after Parent's receipt of a copy of regarding such Superior Offer (pursuant to Section 4.3(b) below)Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Workstream Inc), Agreement and Plan of Merger (Workstream Inc)
No Solicitation. (a) From The Company shall not, nor shall it authorize or permit any of its Subsidiaries to, and it shall not authorize its and its Subsidiaries’ respective Representatives to, directly or indirectly: (i) initiate, solicit or knowingly facilitate or encourage any inquiry or the making of any proposal that constitutes a Takeover Proposal, or (ii) continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information or data or access to its properties with respect to, or otherwise cooperate with or knowingly take any other action to facilitate any proposal that constitutes any Takeover Proposal. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal and request from each Person that has executed a confidentiality agreement with the Company the prompt return or destruction of any confidential information previously furnished to such Person in connection therewith. Notwithstanding the foregoing, prior to the Acceptance Time, the Company and its Representatives, in response to a bona fide written Takeover Proposal that was made after the date of this Agreement until the earlier of the Effective Time or termination and did not result from a material breach of this Agreement pursuant to Section 8, the Company shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3constitutes a Superior Proposal, or (2) the Board of Directors of the Company concludes determines in good faithfaith (after consultation with outside counsel and its financial advisor) would reasonably be expected to result in a Superior Proposal, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company shall be permitted to: (A) provide access to comply with its fiduciary obligations non-public information to the Company's shareholders under applicable law, (3) prior Person making such Takeover Proposal pursuant to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person in accordance with an executed confidentiality agreement containing customary limitations on not less restrictive of the use and disclosure other party than the provisions of the Confidentiality Agreement; provided that all nonpublic written and oral such information furnished provided to such Person by has previously been provided to Parent or on behalf of the Company, and (4) is provided to Parent prior to furnishing any such nonpublic information or substantially concurrently with the time it is provided to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer ; and (iiB) not recommend a Superior Offer participate in discussions or negotiations with respect to its shareholders for a period of not less than such Takeover Proposal with the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of Person making such Superior Offer (pursuant to Section 4.3(b) below)Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Nabors Industries LTD), Agreement and Plan of Merger (Superior Well Services, INC)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectlynot, and nor shall not it permit any of its Subsidiaries to, nor shall it authorize or permit any subsidiary officer, director, employee, agent or representative of the Company or any Representative of any of the Acquired Corporations its Subsidiaries ("COMPANY REPRESENTATIVES") to, directly or indirectly toindirectly, (i) solicit, initiate, encourage or induce knowingly facilitate the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an inquiries regarding any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish any information regarding any of the Acquired Corporations to any Person in connection (including any parties with which the Company or in response to an Acquisition Proposal, (iii) engage any representative of the Company has previously engaged in discussions with any Person or negotiations with respect to any Acquisition Proposal) any information with respect to its business, (iv) approveproperties or assets, endorse or recommend for the purpose of facilitating the consummation of, any Acquisition Proposal Proposal, or (viii) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating agreement with respect to any Acquisition TransactionProposal; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) foregoing shall not prohibit the Company from or any of its Subsidiaries or the Company Representatives from, prior to the acceptance for payment of Shares pursuant to the Offer, (A) furnishing nonpublic information regarding pursuant to a confidentiality letter (provided for informational purposes to Parent subject to the Acquired Corporations toproviso in Section 5.02(c)), with terms no less favorable than the Confidentiality Agreement (as defined in Section 5.03) concerning the Company and its businesses, properties or assets to a Person who has made an unsolicited written Acquisition Proposal, or entering into (B) engaging in discussions with, any Person in response to a Superior Offer submitted by or negotiations with such Person who has made an unsolicited written Acquisition Proposal, but in each case referred to in the foregoing clauses (A) and not withdrawn(B) if (1) neither only to the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) extent that the Board of Directors of the Company concludes shall have concluded in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required necessary in order for the Board of Directors of the Company to comply with its fiduciary obligations duties to the Company's shareholders stockholders of the Company under applicable law. For purposes of this Agreement, (3) prior to furnishing "ACQUISITION PROPOSAL" means any such nonpublic information toproposal or offer for, or entering into discussions with, such any expression of interest (by public announcement or otherwise) by any Person, other than Parent or its affiliates, in a merger or other business combination involving the Company gives Parent written notice or any Subsidiary of the identity Company or any inquiry, proposal or offer to acquire in any manner (including through a joint venture with the Company), directly or indirectly, all or any significant portion of such Person and the assets or capital stock of the Company or any Subsidiary of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (JLG Industries Inc), Agreement and Plan of Merger (Gradall Industries Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the Company shall not directly or indirectlynot, and shall not authorize or permit any subsidiary Subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly (including for purposes of this Section 4.4(a) each of the affiliate shareholders of the Company listed on Exhibit B-1) to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) subject to Section 5.2(c), approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a4.4(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, entering into a confidentiality agreement with or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.34.4 with respect to such Superior Offer, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the 35. Company, and (4) prior to contemporaneously with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 4.4 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) 24 hours prior notice (or such lesser prior notice as provided to the members of the Company's Board of Directors but in no event less than eight hours) of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of provide Parent with at least two (2) business days or forty-eight (48) hours after Parentprior written notice of a meeting of the Company's receipt Board of Directors at which the Company's Board of Directors is reasonably expected to recommend a Superior Offer to its shareholders and together with such notice a copy of such Superior Offer (pursuant to Section 4.3(b4.4(b) below).
Appears in 2 contracts
Samples: Agreement and Plan (Scopus Technology Inc), Agreement and Plan (Scopus Technology Inc)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time Acceptance Date or the termination of this Agreement pursuant to Section 8Article 7, the Company shall not directly or indirectlynot, and the Company shall not permit its Subsidiaries or its executive officers and directors to, and the Company shall not authorize or knowingly permit any subsidiary of the Company or any Representative of any of the Acquired Corporations Representatives to, directly or indirectly toindirectly, (i) solicit, initiateinitiate or encourage, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action intended to facilitate any inquiry in connection with, or the making of any proposal by any party that could reasonably be expected to lead to constitutes, an Acquisition ProposalProposal (other than the Offer and the Merger), (ii) furnish participate in any information discussions or negotiations with any party (other than Parent, Purchaser or the Parent Representatives) regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage furnish to any party (other than Parent, Purchaser or the Parent Representatives) any information intended to facilitate an Acquisition Proposal, or (iv) enter into any agreement, arrangement or understanding with respect to, or otherwise endorse, any Acquisition Proposal; provided, however, that nothing contained in this Section 5.10(a) shall prohibit the Company Board from furnishing information to, or engaging in discussions or negotiations with, any party that makes an unsolicited bona fide written Acquisition Proposal if (A) the Company Board determines in good faith after consultation with its outside legal counsel, that failing to take such action would be substantially likely to result in a breach of its fiduciary duties to the Company’s stockholders under applicable Law, (B) the Company Board determines in good faith after consultation with its outside legal counsel and its financial advisors that the Acquisition Proposal constitutes, or would reasonably be expected to result in, a Superior Proposal, (C) prior to furnishing such information to, or engaging in discussions or negotiations with, such party, the Company receives from such party an executed confidentiality agreement with terms no less favorable to the Company, in all material respects, than those contained in the Confidentiality Agreement, and (D) the Company notifies Parent prior to taking any such action (which notice shall include a complete and correct copy of such proposal). The Company agrees that it shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person parties conducted heretofore with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Napster Inc), Agreement and Plan of Merger (Best Buy Co Inc)
No Solicitation. (a) From During the period beginning on the date of this Agreement and continuing until 11:59 p.m. (Israel time) on July 9, 2010 (the earlier "Solicitation Period End Date"), the Company, its Subsidiaries, and their respective Representatives shall have the right to, directly or indirectly (i) solicit, initiate or encourage any inquiry with respect to, or the making, submission or announcement of, a written Acquisition Proposal by any Person (other than such Person(s) as may be agreed in writing or electronic mail between the parties), and (ii) participate in discussions or negotiations regarding, and furnish to any such Person information with respect to, and take any other action to facilitate any inquiries or the making of the Effective Time or termination of this Agreement pursuant to Section 8any such Acquisition Proposal; provided, however, that (x) the Company shall not directly provide to Parent, promptly upon receipt of such Acquisition Proposal, a written notice specifying all the terms and conditions thereof (other than the name of the Person making such Acquisition Proposal or indirectlyidentifying information with respect to such Person) and (y) the Company shall not, and shall not authorize or permit any subsidiary of its Subsidiaries or any Representative of the Company or its Subsidiaries to, provide to any Representative Person any non-public information unless the Company receives (or has received prior to the date hereof) from such Person an executed confidentiality agreement with confidentiality provisions in form no more favorable, in the aggregate, to such Person than those confidentiality provisions contained in the Confidentiality Agreement; provided further that (A) the Company shall promptly (or, if provided by way of posting such materials on the virtual data room, simultaneously) provide to Parent any non-public information concerning the Company or its Subsidiaries that is provided to such Person given such access but which was not previously provided to Parent and its Representatives and (B) other than with respect to information of the Acquired Corporations directly type set forth in Section 6.5(a) of the Company Disclosure Schedule (including updates thereto), whose disclosure shall in any event require confidentiality agreement as described in clause (y) above, and discussions or indirectly topresentations of the same by the Company and/or its Representatives, the Company and its Representatives shall not provide or make available to any Person (idirectly, through access to virtual data room or otherwise) solicit, initiate, encourage any non-public information concerning the Company or induce the making, submission its Subsidiaries and shall not participate in any discussions or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to negotiations concerning an Acquisition Proposal, (ii) furnish any except for provision of such information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into and participation in negotiations and discussions with, any a Person in response to that made a Superior Offer submitted by such Person bona fide written Acquisition Proposal that meets, on its face (and not withdrawn) if (1) neither without the need for independent verification by the Company nor any Representative of any or a determination of the Acquired Corporations shall have violated any Board of Directors of the restrictions Company), all the conditions set forth in this Section 4.3clauses (a), (2b), (c) and (d) in the definition of Superior Proposal (or, in the event that such Acquisition Proposal does not state explicitly that it meets the condition set forth in clause (b) in the definition of Superior Proposal, the Board of Directors of the Company concludes determines in good faith, based upon the advice of its outside legal counsel, faith that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors condition is reasonably expected likely to consider a Superior Offer be fulfilled); it being understood that such Acquisition Proposal may be non-binding and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)pending due diligence.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tti Team Telecom International LTD), Agreement and Plan of Merger (Tti Team Telecom International LTD)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Article VII, the Company shall not directly or indirectlywill not, and shall not nor will it authorize or permit any subsidiary of the Company its officers, directors, affiliates or employees or any Representative of investment banker, attorney or other advisor or representative retained by any of the Acquired Corporations them to, directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Company Acquisition Proposal (as defined below), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Company Acquisition Proposal, (iii) engage in discussions with any Person person with respect to any Company Acquisition Proposal, except as to the existence of these provisions, (iv) subject to Section 5.2(c), approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Company Acquisition TransactionTransaction (as defined below); provided, however, that prior to until the approval of date on which this Agreement is approved by the Required required vote of the Company Shareholder Voteshareholders, this Section 4.3(a5.4(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations Company and its subsidiaries to, entering into a confidentiality agreement with or entering into discussions with, any Person person or group in response to a Company Superior Offer submitted by such Person person or group (and not withdrawn) if (1) neither the Company nor any Representative of any representative of the Acquired Corporations Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 4.35.4(a), (2) the Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) (x) at least forty-eight (48) hours prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Personperson or group, the Company gives Parent written notice of the identity of such Person person or group and of the Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, person or group and (y) the Company receives from such Person person or group an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person person or group by or on behalf of the CompanyCompany and containing terms no less favorable to the disclosing party than the terms of the Confidentiality Agreement, and (4) prior to contemporaneously with furnishing any such nonpublic information to such Personperson or group, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). The Company will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Company Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is understood that any violation of any of the restrictions set forth in the preceding sentence two sentences by any Representative officer or director of the Company or any investment banker, attorney or other advisor or representative of the Company or any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, its subsidiaries shall be deemed to constitute be a breach of this Section 4.3 5.4(a) by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice (or such lesser prior notice as provided to the members of the Company's Board of Directors but in no event less than eight hours) of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Company Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or provide Parent with at least forty-eight (48) hours after Parentprior written notice of a meeting of the Company's receipt Board of Directors at which the Company's Board of Directors is reasonably expected to recommend a Company Superior Offer to its shareholders and together with such notice a copy of the definitive documentation relating to such Company Superior Offer (pursuant to Section 4.3(b) below)Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Xcarenet Inc), Agreement and Plan of Merger and Reorganization (Healthcare Com Corp)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 8Article 7, the Company and its Subsidiaries shall not, and each of them shall use its reasonable best efforts to cause the Company Representatives not to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiateinitiate or encourage, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action intended to facilitate or with the reasonably foreseeable effect of facilitating, any inquiry in connection with, or the making of any proposal by any party that could reasonably be expected to lead to constitutes, an Acquisition ProposalProposal (other than the Offer and the Merger), (ii) furnish participate in any information discussions or negotiations with any party (other than Parent, Purchaser or the Parent Representatives) regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage furnish to any party (other than Parent, Purchaser or the Parent Representatives) any information intended to facilitate, or with the reasonably foreseeable effect of facilitating, an Acquisition Proposal, or (iv) enter into any agreement, arrangement or understanding with respect to, or otherwise endorse, any Acquisition Proposal; provided, however, that nothing contained in this Section 5.10(a) shall prohibit the Company Board or the Special Committee from furnishing information to, or engaging in discussions or negotiations with, any party that makes an Acquisition Proposal if (A) Purchaser has not yet accepted for payment and paid for Shares in the Offer, (B) the Company Board determines in good faith after consultation with its outside legal counsel, that failing to take such action would create a reasonable likelihood of a breach of its fiduciary duties to the Company’s shareholders under applicable Law, (C) the Acquisition Proposal constitutes a Superior Proposal, (D) prior to furnishing such information to, or engaging in discussions or negotiations with, such party, the Company receives from such party an executed confidentiality agreement with terms no less favorable to the Company, in all material respects, than those contained in the Confidentiality Agreement, and (E) the Company notifies Parent not less than three (3) Business Days prior to taking such action (which notice shall identify the party making the proposal, and describe the material terms thereof). The Company agrees that it shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person parties conducted heretofore with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Guideline, Inc.), Agreement and Plan of Merger (Infousa Inc)
No Solicitation. (a) From the date Each of this Agreement until the earlier IUB and PTC respectively agree that it shall not, nor shall it permit any of the Effective Time or termination of this Agreement pursuant to Section 8it Subsidiaries to, the Company nor shall not directly or indirectly, and shall not it authorize or permit any subsidiary officer, director or employee of the Company or any Representative of investment banker, attorney or other advisor or representative of, it or any of the Acquired Corporations directly or indirectly Subsidiary to, (i) solicit, initiate, initiate or encourage or induce the making, submission or announcement of any Acquisition Proposal takeover proposal (as defined below), (ii) enter into any agreement with respect to any takeover proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that could constitutes, or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposaltakeover proposal; PROVIDED, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, howeverHOWEVER, that prior to the approval of nothing contained in this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, prevent either IUB or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) PTC or the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, either from (3A) prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Personany person in connection with an unsolicited bona fide written takeover proposal to IUB or PTC or their respective shareholders, the Company gives Parent written notice of the identity of such Person if and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (only to the extent that the Board of Directors of IUB or PTC, as applicable, determines in good faith based on written advice of its outside legal counsel that such nonpublic information has not been previously furnished by action is necessary for such Board of Directors to comply with its fiduciary duties to shareholders under applicable law, or (B) complying with Rule 14e-2 promulgated under the Company Exchange Act with regard to Parent)a takeover proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is understood that any violation of any of the restrictions set forth in the preceding sentence by any Representative executive officer of IUB or PTC or any of the Acquired Corporationsits respective Subsidiaries or any investment banker, attorney or other advisor or representative of IUB or PTC or any of their respective Subsidiaries, whether or not such Representative person is purporting to act on behalf of IUB or any of the Acquired CorporationsSubsidiary or PTC or any Subsidiary, as applicable, or otherwise, shall be deemed to constitute be a breach of this Section 4.3 4.2(a) by the Companyparty for whom such person is an executive officer of, or an investment banker, attorney or other advisor or representative for, such party or any Subsidiary. In addition For purposes of this Agreement, "takeover proposal" means any proposal for a merger, consolidation or other business combination involving IUB or PTC or any Subsidiary of either or any proposal or offer to acquire in any manner, directly or indirectly, more than 20% of any class of voting securities of IUB or PTC or any Subsidiary of either, or assets representing a substantial portion of the assets of IUB and its Subsidiaries, taken as a whole, or PTC and its Subsidiaries, taken as a whole, other than the Merger contemplated by this Agreement. Each of IUB and PTC shall immediately cease and cause to be terminated any existing activities, discussions or negotiations by it or any of its officers, investment bankers, attorneys or other advisors or representatives with any parties conducted heretofore with respect to any of the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).. 20
Appears in 2 contracts
Samples: Agreement and Plan of Merger Agreement and Plan of Merger (PTC Bancorp), Agreement and Plan of Merger Agreement and Plan of Merger (Indiana United Bancorp)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the Company Such Stockholder shall not and shall cause its Representatives not to directly or indirectly, if and shall not authorize or permit any subsidiary to the extent prohibited by Section 5.3 of the Company or any Representative of any of Merger Agreement (assuming for this purpose that such Stockholder is the Acquired Corporations directly or indirectly to“Company”, as such term is defined in the Merger Agreement): (i) solicit, initiate, knowingly facilitate or encourage or induce the making, submission or announcement (including by way of furnishing nonpublic information) any Acquisition Competing Proposal or take any action that could reasonably be expected to lead to an Acquisition ProposalCompeting Inquiry, (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any information regarding or afford to any other Person access to the business, properties, assets, books, records or any personnel of the Acquired Corporations to any Person Company or its Subsidiaries, in each case in connection with or in response to an Acquisition Proposalfor the purpose of encouraging or facilitating, a Competing Proposal or Competing Inquiry, (iii) engage in discussions with approve, endorse, recommend, execute or enter into, or publicly propose to approve, endorse, recommend, execute or enter into any Person with respect to any Alternative Acquisition ProposalAgreement, (iv) approvetake any action to make the provisions of any Takeover Statute (including Section 203 of the DGCL) or any applicable anti-takeover provision in the Company’s organizational documents inapplicable to any transactions contemplated by a Competing Proposal, endorse or recommend any Acquisition Proposal or (v) enter into except at the written request of Parent, terminate, amend, release, modify, waive or knowingly fail to enforce any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors provision of the Company concludes Rights Agreement or exempt any Person not affiliated with Parent from the definition of Acquiring Person thereunder, (vi) terminate, amend, release, modify or knowingly fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar contract entered into by the Company in respect of or in contemplation of a Competing Proposal (other than to the extent the Company Board determines in good faith, based upon after consultation with the advice of its Company’s independent financial advisors and outside legal counsel, that failure to take any such action is required actions would be reasonably likely to result in order for the Board of Directors a breach of, or otherwise be inconsistent with, its fiduciary duties under applicable Law) or (vii) propose, resolve or agree to do any of the Company foregoing. Such Stockholder shall not and shall cause its Representatives not to comply directly or indirectly knowingly engage in any conduct prohibited by Section 5.3 of the Merger Agreement (assuming for this purpose that such Stockholder is the “Company”, as such term is defined in the Merger Agreement). Such Stockholder represents and warrants that such Stockholder has reviewed the terms of Section 5.3 of the Merger Agreement with its fiduciary obligations outside counsel to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (GigPeak, Inc.), Tender and Support Agreement (Integrated Device Technology Inc)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8its terms, the Company shall not directly or indirectlyand its subsidiaries will not, and shall not nor will they authorize or permit any subsidiary of the Company their respective officers, directors or employees or any Representative of investment banker, attorney or other advisor or representative retained by any of the Acquired Corporations them to, directly or indirectly toindirectly, (i) solicit, initiate, encourage or induce the making, making or submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with person any Person nonpublic information with respect to any Acquisition Proposal, (iviii) approve, endorse or recommend any Acquisition Proposal or (viv) enter into any letter of intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionProposal; provided, however, that prior to the approval adoption of this Agreement by at the Required Company Shareholder VoteStockholders’ Meeting, this Section 4.3(a4.6(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations toinformation, or entering into discussions with, any Person in response to a Superior Offer person or group who has submitted by such Person (and not withdrawn) if to the Company an unsolicited, written, bona fide Acquisition Proposal that the Board of Directors of the Company reasonably determines in good faith (after consultation its outside financial advisors) constitutes, or could reasonably be expected to lead to, a Superior Offer; provided further, however, that (1) neither the Company nor any Representative of any representative of the Acquired Corporations Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 4.34.6(a) or Section 4.6(b), in each case in any material respect, (2) the Board of Directors of the Company concludes shall have determined in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required reasonably necessary in order for the Board of Directors of the Company to comply act in a manner consistent with its fiduciary obligations to the Company's shareholders ’s stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into any such discussions with, such Personperson or group, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives shall have received from such Person person or group an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished terms at least as restrictive with regard to such Person by or on behalf of the Company’s confidential information as the Confidentiality Agreement, and (4) prior to contemporaneously with furnishing any such nonpublic information to such Personperson or group, the Company furnishes shall have furnished such nonpublic information to Parent (to the extent such nonpublic information has shall not have been previously furnished by the Company to Parent). Subject to the immediately preceding sentence, the Company and its subsidiaries shall immediately cease, and cause their respective officers, directors, employees, investment bankers, attorneys and other advisors and representatives to cease, any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is understood that any violation of any of the restrictions set forth in the preceding sentence two sentences by any Representative officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Acquired Corporations, whether Company or not such Representative is purporting to act on behalf of any of the Acquired Corporations, its subsidiaries shall be deemed to constitute be a breach of this Section 4.3 4.6 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Narrowstep Inc), Agreement and Plan of Merger (Onstream Media CORP)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Article VII, the Company shall not directly or indirectlyand its subsidiaries will not, and shall not nor will they authorize or permit any subsidiary of the Company their respective officers, directors, affiliates or employees or any Representative of investment banker, attorney or other advisor or representative retained by any of the Acquired Corporations them to, directly or indirectly toindirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal(as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish any information regarding any of the Acquired Corporations to any Person in connection person any non-public information with respect to, or in response take any other action to an facilitate any inquiries or the making of any Acquisition Proposal, (iii) engage in discussions with any Person person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionProposal; provided, however, that notwithstanding the foregoing, prior to the approval of this Agreement by and the Required Merger at the Company Shareholder VoteStockholders' Meeting, this Section 4.3(a5.4(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations Company and its subsidiaries to, or entering into discussions or negotiations with, any Person in response to a Superior Offer person or group who has submitted by such Person (and not withdrawn) to Company an unsolicited, written, bona fide Acquisition Proposal that the Board of Directors of Company reasonably concludes (based on the written advice of a financial advisor of national standing) may constitute a Superior Offer if (1) neither the Company nor any Representative representative of any of the Acquired Corporations Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 4.35.4, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into any such discussions with, such Personperson or group, the Company gives Parent written notice of the identity of such Person person or group and all of the material terms and conditions of such Acquisition Proposal and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Personperson or group, and the Company receives from such Person person or group an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).executed
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Verisign Inc/Ca), Agreement and Plan of Merger (Network Solutions Inc /De/)
No Solicitation. (a) From the date None of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8First Charter, the Company shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company its Subsidiaries or any Representative officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of First Charter or any of the Acquired Corporations its Subsidiaries shall directly or indirectly to, (i) solicit, initiate, encourage or induce the makingencourage, submission or announcement facilitate (including by way of any Acquisition Proposal furnishing information) or take any other action that could reasonably be expected designed to lead facilitate any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer) or similar transactions involving First Charter or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the foregoing inquiries or proposals being referred to herein as an Acquisition “Alternative Proposal”), (ii) furnish participate in any information discussions or negotiations regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition ProposalAlternative Transaction, (iii) engage in discussions with enter into any Person with respect to agreement regarding any Acquisition Proposal, Alternative Transaction or (iv) approve, endorse or recommend any Acquisition render the Rights Agreement inapplicable to an Alternative Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; providedthe transactions contemplated thereby. Notwithstanding the foregoing, howeverthe First Charter Board and its representatives shall be permitted, that prior to before the approval of this Agreement by First Charter’s shareholders, and subject to compliance with the Required Company Shareholder Vote, other terms of this Section 4.3(a) shall not prohibit 6.10 and to first entering into a confidentiality agreement with the Company from furnishing nonpublic information regarding the Acquired Corporations person proposing such Alternative Proposal on terms substantially similar to, or entering into discussions withand no less favorable to First Charter than, any Person those contained in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3Confidentiality Agreement, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Personregarding First Charter to a person, and the Company receives from to consider and participate in discussions and negotiations with respect to a bona fide Alternative Proposal received by First Charter and, in connection with such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished Alternative Proposal, to render inapplicable to such Person by or on behalf of person the CompanyRights Agreement, if and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (only to the extent such nonpublic information has not been previously furnished by that and so long as the Company First Charter Board reasonably determines in good faith (after consultation with outside legal counsel) that failure to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting do so would cause it to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to violate its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)fiduciary duties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (First Charter Corp /Nc/), Agreement and Plan of Merger (First Charter Corp /Nc/)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectlynot, nor shall it permit any of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not authorize to permit) any officer, director or permit employee of, or any subsidiary of investment banker, attorney or other advisor or representative of, the Company or any Representative of any of the Acquired Corporations directly or indirectly its Subsidiaries to, (i) solicit, solicit or initiate, encourage or induce encourage, directly or indirectly, any inquiries or the makingsubmission of, submission any Takeover Proposal, (ii) participate in any discussions or announcement of negotiations regarding, or furnish to any Acquisition Proposal Person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that could constitutes, or may reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with Takeover Proposal or in response to an Acquisition Proposal, (iii) engage in discussions with enter into any Person agreement with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Takeover Proposal or (v) enter into approve or resolve to approve any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition TransactionTakeover Proposal; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, nothing contained in this Section 4.3(a) 6.05 or any other provision hereof shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations from (i) taking and disclosing to the Company's shareholders 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 applicable law, (3) prior to furnishing any such nonpublic information tothe Exchange Act, or entering into discussions with, (ii) making such Person, the Company gives Parent written notice of the identity of such Person and of disclosure to the Company's intention stockholders as, in the good faith judgment of the Board, following consultation with outside counsel, is required under applicable Law, provided that the Company may not, except as permitted by Section 6.05(b), withdraw or modify, or propose to furnish nonpublic information towithdraw or modify, its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend any Takeover Proposal, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality any agreement containing customary limitations on the use and disclosure with respect to any Takeover Proposal. Upon execution of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Personthis Agreement, the Company furnishes such nonpublic information will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Shares for payment pursuant to the Offer, the Company acknowledges and agrees that may furnish information concerning its business, properties or assets to any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether Person or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute group concerning a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).Takeover Proposal if:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (HSC Acquisition Corp), Agreement and Plan of Merger (Hills Stores Co /De/)
No Solicitation. (a) From The Company agrees that, for a period commencing on the date hereof and ending on February 28, 2003 (the "Exclusivity Period"), neither the Company nor any of its representatives, directors, officers, stockholders, agents or affiliates (collectively, "Company Representatives") will (i) entertain or discuss any Acquisition Proposal with any other party or provide any information to any other party in connection therewith, or (ii) disclose to any other party the contents of this Agreement until or the earlier details of the Effective Time transactions contemplated herein, except for such disclosure required by law or termination of this Agreement pursuant to Section 8, contained in the Company shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition TransactionProxy Statement; provided, however, that prior to the approval of nothing contained in this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Board of Directors of the Company or Company Representatives from furnishing nonpublic information regarding the Acquired Corporations to, to or entering into discussions withor negotiations with any person or group that makes an unsolicited written, any Person bona fide Acquisition Proposal, if, and only to the extent that (i) the Board of Directors of the Company determines in response good faith by a majority vote, after consultation with a nationally reputed financial advisor and with independent legal counsel that such proposal is, or is reasonably likely to lead to, a Superior Offer submitted by such Person Proposal, (and not withdrawnii) if (1) neither the Board of Directors of the Company nor any Representative determines in good faith by a majority vote after consultation with its outside legal counsel that the failure to negotiate, or otherwise engage in discussions, with such third party would be inconsistent with the Board's fiduciary duties under applicable law, and (iii) such person or group, prior to the disclosure of any non-public information, enters into a confidentiality agreement with the Company that is not, in any material respect, less restrictive as to such person or group than the confidentiality restrictions imposed on the Buyers pursuant to Section 4(f), that contains a standstill restriction prohibiting such third party and its affiliates from acquiring more than five percent (5%) of the Acquired Corporations shall have violated Company's outstanding Common Stock, and that does not contain exclusivity provisions which would prevent the Company from complying with its obligations hereunder. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 4.34(i) by any Company Representative, whether or not such person is purporting to act on behalf of the Company or its directors or otherwise, shall be deemed to be a breach of this Section 4(i) by the Company. Except as expressly permitted by this Section 4(i), the Board of Directors of the Company (or any other committee thereof) shall not (i) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (ii) cause the Company to accept such Acquisition Proposal and/or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Acquisition Proposal; provided, however, that the Board of Directors of the Company may take such actions if, and only to the extent that (A) such Acquisition Proposal is a Superior Proposal, (2B) the Board of Directors of the Company concludes determines in good faithfaith by a majority vote, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the failure to do so would be inconsistent with the fiduciary duty of the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3C) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has is not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by 4(i), and (D) in the Companycase of clause (ii) above, (I) the Company shall, prior to or simultaneously with the taking of such action, have paid or pay to the Buyers or their designee the break-up fee (including payment of Buyers' transaction costs and expenses) set forth in Section 4(j)(ii) below, (II) the Company shall, prior to or simultaneously with the taking of such action, have repaid or repay to Hammer and WAG Holdings the aggregate outstanding principal balance of all loans made to the Company or ecom pursuant to the Loan Agreement, together with any accrued but unpaid interest thereon, and (III) the Company shall have complied with its obligations under Section 9(e). In addition to the foregoingaddition, the Company shall (i) agrees that it will inform the Buyers of, and provide Parent the Buyers with at least twenty-four (24) hours prior notice information regarding, any Acquisition Proposal or other offers or expressions of any meeting of interest for the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Goldstein William A), Stock Purchase Agreement (Market Central Inc)
No Solicitation. (a) From and after the date of this Agreement until the earlier effective time of the Effective Time First Merger or termination of this Agreement pursuant to Section 8Article VIII, the Company shall not directly or indirectlyPathlore and its Subsidiaries will not, and shall not nor will they authorize or permit any subsidiary of the Company their respective officers, directors, affiliates or employees or any Representative of investment banker, attorney or other advisor or representative retained by any of the Acquired Corporations them to, directly or indirectly to, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Pathlore Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any information regarding with respect to, or take any other action to facilitate any inquiries or the making of the Acquired Corporations any proposal that constitutes or may reasonably be expected to lead to, any Person in connection with or in response to an Pathlore Acquisition Proposal, (iii) engage in discussions with any Person person with respect to any Pathlore Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Pathlore Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contract, agreement or commitment contemplating or otherwise relating to any Pathlore Acquisition Transaction; provided, however, that prior to until the approval of date on which this Agreement is approved by the Required Company Shareholder Voterequired vote of the Pathlore Stockholders, this Section 4.3(a5.6(a) shall not prohibit the Company Pathlore from furnishing nonpublic information regarding the Acquired Corporations Pathlore and its Subsidiaries to, entering into a confidentiality agreement with or entering into discussions with, any Person person or group in response to a Pathlore Superior Offer submitted by such Person person or group (and not withdrawn) if to the extent and so long as (1) neither the Company Pathlore nor any Representative representative of any of the Acquired Corporations Pathlore and its Subsidiaries shall have violated any of the restrictions set forth in this Section 4.35.6(a) in connection with such Pathlore Superior Offer, (2) the Pathlore Board of Directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Pathlore Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders Pathlore Stockholders under applicable law, (3) (x) at least one (1) Business Day prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Personperson or group, the Company Pathlore gives Parent SumTotal written notice of the identity of such Person person or group and of the Company's Pathlore’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, person or group and the Company (y) Pathlore receives from such Person person or group an executed confidentiality agreement containing customary limitations on terms no less favorable to the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf disclosing party than the terms of the CompanyConfidentiality Agreement, and (4) prior to contemporaneously with furnishing any such nonpublic information to such Personperson or group, the Company Pathlore furnishes such nonpublic information to Parent SumTotal (to the extent such nonpublic information has not been previously furnished by the Company Pathlore to ParentSumTotal). Without limiting the generality of the foregoingPathlore and its Subsidiaries will immediately cease any and all existing activities, the Company acknowledges and agrees that discussions or negotiations with any violation of parties conducted heretofore with respect to any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the CompanyPathlore Acquisition Proposal. In addition to the foregoing, the Company Pathlore shall (i) provide Parent SumTotal with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt prior written notice (or such lesser prior written notice as provided to the members of the Pathlore Board but in no event less than eight hours) of any meeting of the Pathlore Board at which the Pathlore Board is reasonably expected to consider a Pathlore Acquisition Proposal and (ii) provide SumTotal with at least three (3) Business Days prior written notice of a meeting of the Pathlore Board at which the Pathlore Board is reasonably expected to recommend a Pathlore Superior Offer to the Pathlore Stockholders and together with such notice a copy of the definitive documentation relating to such Pathlore Superior Offer (pursuant to Section 4.3(b) below)Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sumtotal Systems Inc), Agreement and Plan of Merger (Sumtotal Systems Inc)
No Solicitation. (a) From Except as expressly permitted by this Section 5.4, the Company shall, shall cause each of its affiliates and its and their respective officers, directors and employees to, and shall use reasonable best efforts to cause the agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively “Representatives”) of the Company or any of its affiliates to: (A) immediately cease any ongoing solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement) or otherwise request, any person that has executed a confidentiality or non-disclosure agreement within the 36-month period prior to the date of this Agreement in connection with any actual or potential Company Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its Representatives and (B) until the earlier of the Effective Time or or, if earlier, the termination of this Agreement pursuant to Section 8in accordance with Article VII, the Company shall not not, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i1) solicit, initiateinitiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, encourage or induce the making, submission or announcement making of any Acquisition Proposal proposal or take any action offer that constitutes, or could reasonably be expected to lead to an Acquisition to, a Company Takeover Proposal, (ii2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish any information regarding any of the Acquired Corporations to any Person other person any non-public information in connection with or for the purpose of encouraging or facilitating, a Company Takeover Proposal (other than, solely in response to an Acquisition Proposalunsolicited inquiry, to refer the inquiring person to this Section 5.4 and to limit its conversation or other communication exclusively to such referral), or (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv3) approve, endorse recommend or enter into, or propose to approve, recommend any Acquisition Proposal or (v) enter into into, any letter of intent or similar document document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Takeover Proposal. Except to the extent necessary to take any actions that the Company or any Contract contemplating or third party would otherwise relating be permitted to any Acquisition Transaction; provided, however, that prior take pursuant to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a5.4 (and in such case only in accordance with the terms hereof), (A) the Company and its Subsidiaries shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations torelease any third party from, or entering into discussions withwaive, amend or modify any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if provision of, or grant permission under, (1) neither any standstill provision in any agreement to which the Company nor any Representative of or any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, its Subsidiaries is a party or (2) the Board of Directors of any confidentiality provision in any agreement to which the Company concludes in good faith, based upon the advice or any of its outside legal counselSubsidiaries is a party other than, with respect to this clause (2), any waiver, amendment, modification or permission under a confidentiality provision that such action is required does not, and would not be reasonably likely to, facilitate, encourage or relate in order for the Board of Directors of any way to a Company Takeover Proposal or a potential Company Takeover Proposal and (B) the Company to comply with shall, and shall cause its fiduciary obligations to Subsidiaries to, enforce the Company's shareholders under applicable law, (3) prior to furnishing confidentiality and standstill provisions of any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Personagreement, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Companyshall, and (4) prior shall cause its Subsidiaries to, immediately take all steps within their power necessary to furnishing terminate any waiver that may have been heretofore granted, to any person other than Parent or any of Parent’s affiliates, under any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)provisions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Plains Exploration & Production Co), Agreement and Plan of Merger (Freeport McMoran Copper & Gold Inc)
No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time Closing Date or termination of this Agreement pursuant to Section Article 8, the Company shall not directly or indirectlySeller will not, and shall not nor will Seller authorize or permit any subsidiary of the Company its officers, directors, affiliates or employees or any Representative of any of the Acquired Corporations investment banker, attorney, accountant, Seller Affiliate or other advisor or representative retained by it to, directly or indirectly toindirectly, (i) solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or knowingly take any other action to facilitate, or that could would reasonably be expected to lead to an Acquisition Proposalto, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, except to inform them as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal without complying with Section 5.16(c) or (v) enter into any letter of intent or similar document or any Contract contemplating contract agreement or otherwise relating to commitment providing for any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, nothing contained in this Section 4.3(a) 5.7 shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations toBoard of Directors of Seller from, or entering into discussions with, any Person in response to a bona fide written Acquisition Proposal not solicited by Seller in violation of this Section 5.7 that the Board of Directors of Seller has concluded in good faith (after consultation with a financial advisor of nationally recognized reputation) constitutes a Superior Offer submitted by such Person (and not withdrawn) if as defined in Section 5.16(c)), (1) neither furnishing information to the Company nor any Representative of any of party making such Superior Offer, to the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, extent that (2A) the Board of Directors of the Company Seller concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable lawlaw require it to do so, (3B) prior to (x) concurrently with furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company Seller gives Parent Buyer written notice of the identity of such Person and of the Company's Seller’s intention to furnish nonpublic information to, or enter into discussions with, to such Person, party and the Company (y) Seller receives from such Person party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or party on behalf of Seller, the Companyterms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (4C) prior to contemporaneously with furnishing any such nonpublic information to such Personparty, the Company Seller furnishes such nonpublic information to Parent Buyer (to the extent such nonpublic information has not been previously furnished by Seller to Buyer), and (2) engaging in negotiations with the Company party making such Superior Offer to Parent)the extent that (A) the Board of Directors of Seller concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, Seller gives Parent and Buyer written notice of Seller’s intention to enter into negotiations with such party and (y) Seller receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of Seller, the confidentiality terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. Seller will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees it is understood that any violation of any of the restrictions set forth in the preceding sentence two sentences by any Representative officer, director or employee of Seller or any investment banker, attorney, accountant, Seller Affiliate or other advisor or representative of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, Seller shall be deemed to constitute be a breach of this Section 4.3 5.7 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Seller.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sirenza Microdevices Inc), Asset Purchase Agreement (Sirenza Microdevices Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectlynot, and nor shall not it authorize or permit any subsidiary Company Subsidiary to, or authorize or permit any director, officer or employee of the Company or any Representative of Company Subsidiary or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, Representatives) of the Acquired Corporations Company or any Company Subsidiary to, directly or indirectly toindirectly, (i) solicit, initiateinitiate or encourage, encourage or induce the making, submission or announcement of any Acquisition Proposal or take any other action knowingly to facilitate the submission of any Takeover Proposal (as defined below), or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to or take any other action to facilitate any inquiries or the making of any proposal that could constitutes, or would reasonably be expected to lead to, any Takeover Proposal or (iii) make or authorize any statement, recommendation or solicitation in respect of any Takeover Proposal (except as provided in Section 2.2(b)). The Company shall, and shall cause each of the Company Subsidiaries and each Representative of the Company or any Company Subsidiary to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person conducted heretofore with respect to any proposal that constitutes or would reasonably be expected to lead to an Acquisition Proposala Takeover Proposal and (B) request the prompt return or destruction of all confidential information previously furnished to any third party, in each case, to the extent applicable, in accordance with the terms of any confidentiality, non-disclosure or other similar agreement to which the Company or Company Subsidiary is a party. The Company shall, and shall cause each Company Subsidiary and its and their Representatives to, enforce (iiand not release any person from any obligation under) furnish any information regarding confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party. Notwithstanding the foregoing, at any time prior to closing of the Acquired Corporations to any Person in connection with or in response to an Acquisition ProposalOffers, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit if the Company from furnishing nonpublic information regarding has received a Takeover Proposal that the Acquired Corporations to, Company Board determines in good faith (after consultation with outside counsel and an independent financial advisor of internationally recognized reputation) is or entering into discussions with, any Person in response is reasonably likely to lead to a Superior Offer submitted Proposal (as defined below) and that was not solicited by such Person (and not withdrawn) if (1) neither the Company nor any Representative or its Representatives and that did not otherwise result from a breach or a deemed breach of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person2.2(a), and the Company receives from Board determines in good faith (by a majority vote of its members after consultation with outside counsel) that the failure to take the following actions would be inconsistent with its fiduciary duties under applicable Law, subject to providing prior written notice of its decision to take such Person an executed confidentiality agreement containing customary limitations on the use action to Purchaser and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Personcompliance with Section 2.2(c), the Company furnishes such nonpublic may: (1) furnish information with respect to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parentthe person making such Takeover Proposal and such person’s Representatives pursuant to a confidentiality agreement not less restrictive (including as to standstill provisions) of the other party than the confidentiality agreement dated August 29, 2007 between the Company and Purchaser (the Confidentiality Agreement), provided that all such information not previously provided to Purchaser is provided or made available on a substantially concurrent basis to Purchaser and (2) participate in discussions or negotiations with the person making such Takeover Proposal regarding such Takeover Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any director, officer, employee or Representative of the Company or any of the Acquired CorporationsCompany Subsidiary, whether or not such Representative person is purporting to act on behalf of the Company or any of the Acquired CorporationsCompany Subsidiary or otherwise, shall be deemed to constitute be a breach of this Section 4.3 2.2(a) by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Tender Offer Agreement (Sap France S.A.), Tender Offer Agreement (Business Objects S.A.)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the The Company shall not directly or indirectlynot, and nor shall not it permit any of its subsidiaries to, nor shall it authorize or permit any subsidiary director, officer or employee of the Company or any Representative of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of the Acquired Corporations its subsidiaries to, directly or indirectly toindirectly, (i) solicit, initiate, initiate or encourage any Takeover Proposal (as defined below) or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposalto, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to cooperate in any Acquisition Transactionway with, or assist or participate in any effort or attempt by any person with respect to, any Takeover Proposal; provided, however, provided that at any time prior to the approval of this Agreement by the Required Company Shareholder VoteSpecified Date, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes may, in good faith, based upon the advice of its outside legal counsel, response to a Superior Proposal (as defined below) or a bona fide Takeover Proposal that such action is required in order for the Board of Directors determines in good faith is reasonably likely to lead to a Superior Proposal (a "Likely Superior Proposal"), in each case that was unsolicited, and subject to compliance with Section 4.02(c), (x) furnish information with respect to the Company and its subsidiaries to the person making such Superior Proposal or Likely Superior Proposal (and its representatives) pursuant to a customary confidentiality agreement (which confidentiality agreement contains terms that are no less favorable to the Company than the terms of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable lawConfidentiality Agreement dated December 4, (3) prior to furnishing any such nonpublic information to2000, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, between Compass and the Company receives (as it may be amended from time to time, the "Confidentiality Agreement")) provided that all such Person an executed confidentiality agreement containing customary limitations information is provided on the use and disclosure of all nonpublic written and oral information furnished a prior or substantially current basis to such Person by or on behalf of the Company, Compass; and (4y) prior to furnishing any such nonpublic information to such Person, participate in discussions or negotiations with the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of person making such Superior Offer Proposal or Likely Superior Proposal (pursuant to Section 4.3(band its representatives) below)regarding such Superior Proposal or Likely Superior Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Morrison Management Specialists Inc), Agreement and Plan of Merger (Yorkmont One Inc)
No Solicitation. (a) From Neither the date Company nor any of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, its Subsidiaries shall (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent, any of its affiliates or representatives) concerning any proposal or offer to acquire all or a substantial part of the business and shall not authorize or permit any subsidiary properties of the Company or any Representative of its Subsidiaries or any capital stock of the Company or any of its Subsidiaries, whether by merger, tender offer, exchange offer, sale of assets or similar transactions involving the Acquired Corporations directly Company or indirectly toany Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"), except that nothing contained in this Section 5.6 or any other provision hereof shall prohibit the Company or the Company's Board from (i) solicittaking and disclosing to the Company's 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, initiateor (ii) making such disclosure to the Company's stockholders as, encourage in the good faith judgment of the Board, after receiving advice from outside counsel, is required under applicable law, provided that the Company may not, except as permitted by Section 5.6(b), withdraw or induce modify, or propose to withdraw or modify, its position with respect to the makingOffer or the Merger or approve or recommend, submission or announcement of propose to approve or recommend any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish or enter into any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person agreement with respect to any Acquisition Proposal. The Company will immediately cease any existing activities, (iv) approve, endorse discussions or recommend negotiations with any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating parties conducted heretofore with respect to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations foregoing. The Company also shall have violated any promptly request each person which has heretofore executed a confidentiality agreement in connection with its consideration of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of acquiring the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic return all confidential information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information heretofore furnished to such Person person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Medserve Corp), Agreement and Plan of Merger (Omnicare Inc)
No Solicitation. (a) From the date of this Agreement hereof until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Agreement, the Company agrees that neither it nor any of the officers or directors shall, and that it shall direct and use its best reasonable efforts to cause its officers, directors, employees, investment bankers, consultants, attorneys and other agents not to, directly or indirectly, and shall not authorize or permit take any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) action to solicit, initiate, encourage or induce facilitate the making, submission or announcement making of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection inquiry with respect thereto or in response to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person person with respect thereto, or disclose any non-public information relating to the Company or afford access to the properties, books or records of the Company to any person that has made any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, nothing contained in this Section 4.3(a) 6.14 shall not prohibit prevent the Company Company, after providing prior notice thereof to Buyer that it is taking such action, from furnishing nonpublic non-public information regarding the Acquired Corporations to, or entering into discussions or negotiations with, any Person person in response connection with an unsolicited bona fide Acquisition Proposal received from such person that the Company Board determines in good faith is reasonably likely to lead to a Superior Offer submitted by such Person Proposal, so long as (and not withdrawni) if (1) neither the Company nor any Representative of any of has received prior to the Acquired Corporations shall have violated any of date hereof an executed confidentiality agreement or prior to furnishing non-public information to, or entering into discussions or negotiations with, such person, the restrictions set forth in this Section 4.3, Company receives from such person an executed confidentiality agreement containing standard terms and conditions and (2ii) the Company Board of Directors of the Company concludes determines in good faith, based on such matters that it deems relevant, but in any event upon the advice of its outside independent legal counsel, that such action is required in order necessary for the Company Board of Directors of the Company to comply with its fiduciary obligations duties to the Company's shareholders under applicable law; provided, (3) prior to furnishing any such nonpublic information tofurther, or entering into discussions with, such Person, that nothing contained in this Agreement shall prevent the Company gives Parent written notice or its board of directors from complying with Rule 14e-2 or 14d-9 under the identity of such Person and of the Company's intention 1934 Act with regard to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tweeter Home Entertainment Group Inc), Agreement and Plan of Merger (Sound Advice Inc)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Neither Brainworks, the Company nor the LLC shall not directly or indirectly, and shall not authorize or permit any subsidiary of the other Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case of the Company or any Representative of any of and the Acquired Corporations directly or indirectly LLC) to, (i) directly or indirectly solicit, initiate, encourage encourage, induce or induce facilitate the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case of the Company and the LLC) to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition TransactionTransaction (other than the transactions contemplated by this Agreement); provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a4.4(a) shall not prohibit the Company Brainworks from furnishing nonpublic information regarding the Acquired Brainworks Corporations to, or entering into discussions with, any Person in response to a Superior Offer Proposal that is submitted to Brainworks by such Person (and not withdrawn) if (1) neither the Company Brainworks nor any Representative of any of the Acquired Brainworks Corporations shall have violated any of the restrictions set forth in this Section 4.34.4, (2) the Board board of Directors directors of the Company Brainworks concludes in good faith, based upon after having taken into account the written advice of its outside legal counsel, that such action is required in order for the Board board of Directors directors of the Company Brainworks to comply with its fiduciary obligations to the Company's shareholders Brainworks' stockholders under applicable law, (3) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, Brainworks gives the Company gives Parent LLC written notice of the identity of such Person and of the Company's Brainworks' intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company Brainworks receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Brainworks and containing "standstill" provisions no less favorable to Brainworks than the Company"standstill" provisions contained that certain letter agreement dated July 2, 2002, between the LLC and Brainworks, and (4) at least two business days prior to furnishing any such nonpublic information to such Person, the Company Brainworks furnishes such nonpublic information to Parent the LLC (to the extent such nonpublic information has not been previously furnished by Brainworks to the Company to ParentLLC). Without limiting the generality of the foregoing, Brainworks, the LLC and the Company acknowledges each acknowledge and agrees agree that any violation of or the taking of any action inconsistent with any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired CorporationsBrainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case of the Company and the LLC), whether or not such Representative is purporting to act on behalf of any of the Acquired Corporationssuch Entities, shall be deemed to constitute a breach of this Section 4.3 4.4 by Brainworks, the Company. In addition to , or the foregoingLLC, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below)as applicable.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc), Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc)
No Solicitation. (a) From Neither the date of this Agreement until the earlier Company nor any of the Effective Time other Acquired Corporations nor any of its or termination of this Agreement pursuant to Section 8, the Company their respective Representatives shall not directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, or knowingly encourage or induce the making, submission or announcement of any inquiries or the making of any proposal or offer related to an Acquisition Proposal Transaction or take any action that could reasonably be expected to lead to an Acquisition Proposalany such inquiries or the making of any such proposal or offer, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition ProposalTransaction or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Transaction, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition ProposalTransaction, (iv) approve, endorse or recommend any Acquisition Proposal Transaction, (v) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Transaction, or (vvi) enter into any letter of intent or similar document or any Contract contemplating having a primary purpose of effectuating, or otherwise relating to which would effect, any Acquisition Transaction; provided, however, that prior to the approval adoption of this Agreement by the Required Company Shareholder Stockholder Vote, this Section 4.3(a4.2(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, or negotiations with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company Acquired Corporations nor any Representative of their Representatives have taken any actions inconsistent with any of the Acquired Corporations shall have violated any of the restrictions provisions set forth in this Section 4.34.2, (2) the Board board of Directors directors of the Company concludes in good faith, based upon the advice of after consultation with its outside legal counsel, that such action is required in order for the Board board of Directors directors of the Company to comply with its fiduciary obligations to the Company's shareholders ’s stockholders under applicable lawLegal Requirements, (3) at least 48 hours prior to furnishing any such nonpublic information to, or entering into discussions with or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person Person, a reasonably detailed description of such Superior Offer and of the Company's ’s intention to furnish nonpublic information to, or enter into discussions with, or negotiations with such Person, and (4) the Company receives from such Person an executed confidentiality agreement containing customary limitations on confidentiality provisions no less favorable in the use aggregate to the Company than those contained in the Mutual Nondisclosure Agreement dated August 6, 2003 between Parent and disclosure of all nonpublic written and oral information furnished to the Company (the “Nondisclosure Agreement”) (provided that such Person by or on behalf confidentiality agreement will not prevent the Company from disclosing the terms of the CompanySuperior Offer to Parent and its Representatives or from otherwise complying with this Section 4.2(a)), and (45) prior to contemporaneously with furnishing any such additional nonpublic information to such Person, the Company furnishes such additional nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) provided, that this Section 4.2(a) shall not prohibit the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or 14e-2 promulgated under the Exchange Act or (ii) from making any disclosure to its stockholders if, in the good faith judgment of the Company board of directors, after receipt of advice from outside counsel, failure so to disclose would violate its fiduciary duties to the Company’s stockholders under applicable Legal Requirements; it being expressly understood that nothing in this sentence shall be construed to limit or expand Parent’s rights and the Company’s obligations under each of Section 5.2 and Section 8.1(e). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.3 4.2 by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Applied Micro Circuits Corp), Agreement and Plan of Merger (Jni Corp)
No Solicitation. (a) From the date of this Agreement until the earlier of the Effective Time or or, if earlier, the termination of this Agreement pursuant to Section 8Agreement, the Company shall not (whether directly or indirectly through advisors, agents or other intermediaries), and the Company shall cause its respective officers, directors, advisors, representatives or other agents of the Company not to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (ia) solicit, initiate, initiate or encourage or induce the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (vb) enter into any letter of intent or similar document or any Contract contemplating or otherwise except with respect to an unsolicited Acquisition Proposal relating to any Acquisition Transaction; provided, however, that prior to the approval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted Proposal to the extent required by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any fiduciary obligations of the Acquired Corporations shall have violated any Board of Directors of the restrictions set forth Company, as determined in this Section 4.3, (2) good faith by the Board of Directors of the Company concludes in good faith, based upon on the advice of outside counsel and after taking into account the provisions of IBCA ss.490.1108, engage in discussions or negotiations with, or disclose any non-public information relating to the Company or its outside legal counselSubsidiaries or afford access to the properties, that such action is required in order for the Board of Directors books or records of the Company to comply with or its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information Subsidiaries to, any Person that has made an Acquisition Proposal or entering to any Person in contemplation of an Acquisition Proposal or (c) enter into discussions withany agreement or agreement in principle providing for or relating to an Acquisition Proposal; provided, such Personhowever, that the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or may enter into discussions with, such Person, and any agreement conditional upon the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person concurrent exercise by or on behalf of the Company, and (4) prior to furnishing concurrently with the effectiveness of any such nonpublic information to such Personagreement, the Company furnishes such nonpublic information does exercise, the termination right set forth in Section 7.1(i) hereof; provided that the exception in clause (b) with respect to Parent (to a Superior Proposal shall not apply following the extent such nonpublic information has not been previously furnished approval of the Merger by the Company shareholders pursuant to Parent)the Required Company Vote. Without limiting the generality provisions of the foregoingInvestment Agreement then in effect, (x) the Company will promptly inform DuPont when, in connection with an Acquisition Proposal made by any third party, the Company acknowledges and agrees that is engaging in substantive discussions or negotiations with such party or has provided such party or representative of such party with or access to any violation of any material non-public information properties, books or records of the restrictions set forth Company or its material Subsidiaries, and (y) at any time following the 45th day after the date of this Agreement, the Company will inform DuPont within 5 business days of its receipt thereof, of its receipt (a "Second Period Event") from a third party of a public or private written Acquisition Proposal which, in the preceding sentence by any Representative of any judgment of the Acquired CorporationsBoard in the exercise of its fiduciary obligations, whether or not such Representative as determined (and the timing of which determination is purporting to act also determined) in good faith based on behalf the advice of any outside counsel and taking into account the provisions of the Acquired CorporationsIBCA ss. 490.1108, shall be deemed is reasonably likely to constitute a breach Superior Proposal and which is reasonably likely to result in a binding agreement within a period of 10 business days or less; provided that nothing in clauses (x) or (y) above shall obligate the Company to disclose the identity of any third party or the terms of any such Acquisition Proposal. Nothing contained in this Section 4.3 by the Company. In addition to the foregoing, 5.5 shall prohibit the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of or the Company's Board of Directors at which from taking and disclosing to the Company's Board of Directors is reasonably expected shareholders a position with respect to consider a Superior Offer and (ii) not recommend tender or exchange offer by a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (third party pursuant to Section 4.3(bRules 14d-9 and 14e-2(a) below)promulgated under the Exchange Act or from making any disclosure required by applicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pioneer Hi Bred International Inc), Agreement and Plan of Merger (Dupont E I De Nemours & Co)
No Solicitation. (a) From Except as permitted by this Section 6.3, during the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8Pre-Closing Period, the Company shall not, shall cause its Subsidiaries to not, shall not authorize its Representatives to, and shall direct its Representatives not to, directly or indirectly, and shall not authorize or permit any subsidiary of the Company or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, initiate or knowingly facilitate or encourage or induce (including by way of furnishing non-public information) the making, submission or announcement making of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish engage in or otherwise participate in any information regarding discussions (except to notify a Person that makes any inquiry or offer with respect to an Acquisition Proposal of the Acquired Corporations existence of the provisions of this Section 6.3 or to clarify whether any such inquiry, offer or proposal constitutes an Acquisition Proposal) or negotiations regarding, or furnish to any other Person any non-public information in connection with or in response to for the purpose of knowingly encouraging or facilitating, an Acquisition Proposal, (iii) engage enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or (iv) waive or release any Person from, fail to use reasonable best efforts to enforce any standstill agreement or any standstill provisions of any Contract entered into in respect of a potential Acquisition Proposal; provided, however, the Company Board may take, or omit to take, any of the actions contemplated by clause (iv) of this Section 6.3 in the event that the Company determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would breach the fiduciary duties of the Company Board under applicable Law. The Company and its directors, officers and employees shall, and the Company shall direct its other Representatives to, (A) cease and cause to be terminated any solicitation and any and all existing discussions or negotiations with any Person conducted heretofore with respect to any Acquisition ProposalProposal and (B) terminate access by any Person (other than Parent, (iv) approvePurchaser, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document the Company or any Contract contemplating of their respective Affiliates or otherwise Representatives) to any physical or electronic data room relating to any potential Acquisition Transaction; provided, however, that prior to Proposal. For the approval avoidance of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions withdoubt, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any violation of the restrictions set forth in this Section 4.3, (26.3(a) the Board of Directors by a director or officer of the Company concludes in good faith, based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute be a breach of this Section 4.3 6.3(a) by the Company. In addition to the foregoing, the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (2) business days or forty-eight (48) hours after Parent's receipt of a copy of such Superior Offer (pursuant to Section 4.3(b) below).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Adamas Pharmaceuticals Inc), Agreement and Plan of Merger (Supernus Pharmaceuticals, Inc.)
