No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. Except as permitted by this Agreement, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders of the Company, if the Company receives an Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a), the Company may furnish non-public information with respect to the Company and the Company Subsidiaries to the person who made such Acquisition Proposal (a "Third Party") and may participate in negotiations regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as hereinafter defined). Notwithstanding the foregoing, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter into a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may be. The Company shall promptly notify (but in any event within two (2) calendar days) MergerCo of the Company's first receipt of a written Acquisition Proposal by such Third Party and of the material terms and conditions thereof. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party. (c) Nothing contained in this Section 7.5 shall prohibit the Company from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act. (d) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.
Appears in 3 contracts
Samples: Proxy Statement (Instron Corp), Proxy Statement (Instron Corp), Proxy Statement (Instron Corp)
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. Except as permitted by this Agreement, the Company shall not, and shall not authorize or permit any of its officers, directors trustees or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it toit, directly or indirectly, to (i) solicit, initiate or knowingly encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries with respect to an Acquisition Proposal, or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders holders of the CompanyCompany Common Stock, if the Company receives an a bona fide Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a6.4(a), the Company may furnish furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the person Person who made such Acquisition Proposal (a "“Third Party"”) and may participate in discussions and negotiations regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent legal counsel in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to constitute a breach of be inconsistent with its fiduciary duties to the Company's stockholders Company or its shareholders under applicable law, and (B) the Company Board determines in good faith, after consultation with the Company’s legal and financial advisors, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal.
(b) Subject to Section 8.1(e) hereof, prior to the approval of the Agreement by holders of the Company Common Stock, the Company Board may not (i) withdraw or modify in a manner material and adverse to Parent or MergerCo, the Company Board’s adoption of this Agreement or its recommendation that holders of the Company’s Common Stock approve this Agreement, (ii) recommend an Acquisition Proposal to holders of the Company Common Stock or (as hereinafter defined)iii) cause the Company to enter into any definitive agreement with respect to an Acquisition Proposal, unless, in each such case, a Superior Proposal has been made and the Company Board determines in good faith, after consultation with outside counsel, that failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties to the Company or its shareholders under applicable law. Notwithstanding the foregoing, for a period of not less than three (3) Business Days after the Company notifies Parent of a Superior Proposal, the Company shall, prior and shall cause its legal and financial advisors to, if requested by Parent, negotiate in good faith with Parent to furnishing revise this Agreement so that the Acquisition Proposal that constituted a Superior Proposal no longer constitutes a Superior Proposal. In determining whether an Acquisition Proposal is a Superior Proposal, the Company must take into account any amendments to this Agreement proposed by Parent. Notwithstanding the foregoing, to the extent required, the Company Board may take and disclose to the Company stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, or making any other disclosure to the Company’s stockholders if, the Company Board determines in its good faith judgment (after receipt of advice from reputable outside legal counsel experienced in such matters) that there is a reasonable basis to conclude disclosure is required under applicable Law.
(c) The Company shall within 24 hours notify Parent after: (i) receipt of an Acquisition Proposal (including in reasonable detail the terms of such Acquisition Proposal and the identity of the offeror), (ii) any request for information relating to the Company (including non-public information with respect information) or for access to the Company and properties, books or records of the Company Subsidiaries to such Third Partyby any Person that has made an Acquisition Proposal, enter into a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may be. The Company shall promptly notify (but in any event within two (2iii) calendar days) MergerCo of the Company's first receipt of an amendment to a written previously disclosed Acquisition Proposal by (including the terms of such Third Party and of the material terms and conditions thereofamendment). Notwithstanding anything to the contrary in this AgreementIf Parent requests, the Company shall not be required promptly provide Parent with a copy of any proposed agreement relating to disclose to Parent or MergerCo the identity of the Third Party making any such an Acquisition Proposal and, except Proposal. Other than as provided expressly set forth in Section 9.1(c)(ithis clause (c), the Company shall have no duty to notify or update Parent or MergerCo on the status of with respect to any discussions or negotiations (including the status of such relating to an Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third PartyProposal.
(cd) Subject to the provisions of this Section 6.4 of this Agreement, the parties acknowledge and agree that the Company may accept a Superior Proposal, enter into an agreement for such Superior Proposal and terminate this Agreement immediately prior to, or immediately after, such acceptance of a Superior Proposal pursuant to the terms of Section 8.1(e).
(e) The Company shall (i) immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal, (ii) use reasonable best efforts to cause all Persons other than Parent and its Affiliates who have been furnished with confidential information regarding the Company in connection with the solicitation of or discussions regarding any Acquisition Proposal within the 12 months prior to the date hereof promptly to return or destroy such information, and (iii) use its reasonable best efforts to enforce and not waive any provision or release any Person (other than Parent and its Affiliates) from any confidentiality, standstill or similar agreement relating to an Acquisition Proposal (other than, with respect to this clause (iii), such waivers and releases of any standstill obligations to Persons whom the Company Board determines in good faith intend to make an Acquisition Proposal that is reasonably likely to constitute a Superior Proposal).
(f) Nothing contained in this Section 7.5 6.4 shall prohibit the Company from at any time taking and disclosing to its stockholders shareholders a position contemplated by Rule 14d-9 or Rule 14e-2 14e-2(a) promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(dAct or Item 1012(a) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.Regulation M-A.
Appears in 2 contracts
Samples: Merger Agreement (CentraCore Properties Trust), Merger Agreement (Geo Group Inc)
No Solicitations. (a) The Company Each FW Entity represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements). Except as permitted by this Agreement, the Company shall notno FW Entity, and no FW Entity shall not authorize or permit any of its respective officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it any of them to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement the Transactions by the stockholders of the CompanyCompany and the partners of FWOP, if the Company any FW Entity receives an a written Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a7.10(a) and the Board of Directors of the Company determines in good faith (after consultation with and consistent with the advice of its outside legal counsel and its financial advisor) that (A) such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as defined below), and (B) such action is consistent with the Company Company's Board of Directors' duties under applicable Maryland law, then the FW Entities may furnish information, including, without limitation, non-public information information, with respect to the Company and the Company Subsidiaries FW Entities to the person who made such Acquisition Proposal (a "Third Party") and the FW Entities may participate in negotiations regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as hereinafter defined). Notwithstanding the foregoing, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter into a confidentiality agreement with such Third Party executes a confidentiality/standstill agreement with terms no less favorable the FW Entities in customary form and providing, in a form satisfactory to the Company than those contained in USRP Entities, that the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement USRP Entities shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may behave third party beneficiary rights thereunder. The Company shall promptly notify (but in agrees not to amend any event within two (2) calendar days) MergerCo such agreement or waive any of its rights thereunder without the prior written approval of the Company's first receipt of a written Acquisition Proposal by such Third Party and of the material terms and conditions thereof. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party.
(c) Nothing contained in this Section 7.5 shall prohibit the Company from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(d) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.USRP
Appears in 2 contracts
Samples: Master Agreement (First Washington Realty Trust Inc), Master Agreement (First Washington Realty Trust Inc)
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be could reasonably be expected to lead to, any an Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements). Except as explicitly permitted by this Agreementhereunder, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it toit, directly or indirectly, to (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal or (iii) enter into any agreements, definitive or otherwise, regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders shareholders of the Company, if the Company receives an Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a), the Company may furnish non-public information with respect to the Company and the Company Subsidiaries to the person who made such Acquisition Proposal (a "Third Party") and may participate in discussions and negotiations regarding such Acquisition Proposal if (A) the Company Board determines (A) based on the advice of independent legal counsel counsel, that the failure to do so would be reasonably likely to constitute a breach of be inconsistent with its fiduciary duties to the Company's stockholders shareholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely to lead to a Superior Acquisition Proposal (as hereinafter defineddefined below). Notwithstanding .
(b) At any time prior to the foregoingapproval of this Agreement by the shareholders of the Company, the Company shallBoard shall not (i) withdraw or modify in a manner adverse to MergerCo its approval or recommendation of this Agreement or the Merger, prior (ii) approve or recommend an Acquisition Proposal to furnishing non-public information its shareholders or (iii) cause the Company to enter into any agreement with respect to an Acquisition Proposal, unless in any such case the Company and Board shall have determined in good faith, based on the Company Subsidiaries advice of legal counsel, that failure to such Third Party, enter into a confidentiality agreement do so would be inconsistent with such Third Party with terms no less favorable its fiduciary duties to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may be. The Company shall promptly notify (but in any event within two (2) calendar days) MergerCo of the Company's first receipt shareholders under applicable law and, in the case of a written Acquisition Proposal by such Third Party and of the material terms and conditions thereof. Notwithstanding anything to the contrary in this Agreementclause (iii) above, the Company shall not be required to disclose to Parent or MergerCo have complied with the identity provisions of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Partyhereof.
(c) Nothing contained in this Section 7.5 shall prohibit the Company from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(d) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 1525% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 1525% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which (A) any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), ) or the right to acquire beneficial ownership, ownership of or (B) any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns owns, or has the right to acquire beneficial ownership of, 1525% or more of the outstanding shares of Common StockOld Common, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company Company, or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions. The term "Superior Acquisition Proposal" shall mean an Acquisition Proposal that the Company Board determines based on the advice of its financial advisors is more favorable to the shareholders of the Company than the Transactions (taking into account all the terms and conditions of such Acquisition Proposal and the Transactions, including without limitation the price, any conditions to consummation, and the likelihood of such Superior Acquisition Proposal and the Transactions being consummated).
Appears in 2 contracts
Samples: Merger Agreement (Meridian Insurance Group Inc), Merger Agreement (Meridian Insurance Group Inc)
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. Except as permitted by this Agreement, the Company shall not, and shall not authorize or permit cause any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it toit, directly or indirectly, to (i) solicit, initiate or knowingly encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries with respect to an Acquisition Proposal, or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders holders of the CompanyCompany Common Stock, if the Company receives an a bona fide Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a6.4(a), the Company may furnish furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the person Person who made such Acquisition Proposal (a "“Third Party"”) and may participate in discussions and negotiations regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent legal counsel in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to constitute a breach of be inconsistent with its fiduciary duties to the Company's stockholders Company or its shareholders under applicable law, and (B) the Company Board determines in good faith, after consultation with its financial advisors, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as hereinafter defined). Notwithstanding the foregoing, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter into a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may beProposal. The Company shall promptly notify (but promptly, and in any event within two three (23) calendar days) MergerCo Business Days, notify Parent orally and in writing after receipt by the Company of the Company's first receipt of a written any Acquisition Proposal by such Third Party and of Proposal, including the material terms and conditions thereof, to the extent known. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(iSections 6.4(b) and 8.1(e), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party. Immediately after the execution and delivery of this Agreement, the Company will, and will instruct its subsidiaries, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal.
(b) Subject to Section 8.1(e) hereof, prior to the approval of the Agreement by holders of the Company Common Stock, the Company Board may not (i) withdraw or modify in a manner material and adverse to Parent or MergerCo, the Company’s Board adoption of this Agreement or its recommendation that holders of the Company’s Common Stock approve this Agreement, (ii) recommend an Acquisition Proposal to holders of the Company Common Stock or (iii) cause the Company to enter into any definitive agreement with respect to an Acquisition Proposal, unless, in each such case, a Superior Proposal has been made and (x) the Company Board determines in good faith, after consultation with outside counsel, that failure to take such action would be reasonably likely to be inconsistent with its duties to the Company or its shareholders under applicable law, and (y) the Company provides Parent with notice of its decision to withdraw or modify its approval or recommendation of this Agreement or the Merger. In the event that the Company Board makes such determination, the Company may enter into a definitive agreement to effect a Superior Proposal, but not prior to seventy-two (72) hours after the Company (A) has provided Parent with written notice that the Company Board has received a Superior Proposal and that the Company has elected to terminate this Agreement pursuant to Section 8.1(e) of this Agreement, (B) has set forth such other information required to be included therein as provided in Section 8.1(e); and (C) has otherwise complied with the Company’s obligations in the preceding sentence.
(c) Upon execution of this Agreement, the Company shall cease immediately, and cause to be terminated, any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to, or that would reasonably be expected to lead to, an Acquisition Proposal.
(d) Nothing contained in this Section 7.5 6.5 shall prohibit the Company from at any time taking and disclosing to its stockholders shareholders a position contemplated by Rule 14d-9 or Rule 14e-2 14e-2(a) promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(dAct or Item 1012(a) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.Regulation M-A.
Appears in 1 contract
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request Immediately after the return execution of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. Except as permitted by this Agreement, the Company shall notwill terminate and cease any discussions or negotiations with any parties relating to an Acquisition Proposal. Neither the Company, and shall not authorize or permit nor any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it toit, shall, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders of the Company, if the Company receives an a bona fide written Acquisition Proposal that was unsolicited or and that did not otherwise result from a breach of this Section 7.5(a), the Company may furnish non-public information with respect to the Company and the Company Subsidiaries to the person who made such Acquisition Proposal (a "“Third Party"”) and may participate in negotiations discussions regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent legal counsel in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to constitute a breach of inconsistent with its fiduciary duties to the Company's ’s stockholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as hereinafter defined). Notwithstanding the foregoing, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter into a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may beProposal. The Company shall promptly notify (but in any event within two one (21) calendar daysbusiness day) MergerCo Parent of the Company's ’s first receipt of a written Acquisition Proposal by such Third Party and of the material terms and conditions thereof. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making any such Acquisition Proposal and, except as provided in Section Sections 7.5(b) and 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party.
(b) Subject to Section 9.1(d)(ii) and prior to the approval of this Agreement by the stockholders of the Company, the Company Board may not (i) withdraw or modify in a manner material and adverse to Parent or MergerCo its approval or recommendation of this Agreement, (ii) approve or recommend an Acquisition Proposal to its stockholders or (iii) cause the Company to enter into any definitive agreement with respect to an Acquisition Proposal, unless, in each such case, in the event a Superior Proposal is made, the Company Board determines in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law. In the event that the Company Board makes such determination, the Company may enter into an agreement with respect to a Superior Proposal, but only forty-eight (48) hours after Parent’s receipt of written notice (A) advising Parent that the Company Board has received a Superior Proposal and that the Company has elected to terminate this Agreement pursuant to Section 9.1(c)(i) of this Agreement and (B) setting forth such other information required to be included therein as provided in Section 9.1(c)(i).
(c) Nothing contained in this Section 7.5 shall prohibit the Company from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 14e-2(a) promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(d) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.
Appears in 1 contract
Samples: Merger Agreement (Rc2 Corp)
No Solicitations. (a) The Company represents will, and warrants that it has terminated will cause each of its Subsidiaries to, and its and their respective officers, trustees, employees and Representatives to, immediately cease any existing solicitations, discussions or negotiations relating to, with any Person that has made or that may be reasonably be expected indicated an intention to lead to, any make an Acquisition Proposal (as hereinafter defined) and Proposal. The Company will promptly request the return of all confidential information regarding that each Person who has executed a confidentiality agreement with the Company provided in connection with that Person’s consideration of an Acquisition Proposal return or destroy all non-public information furnished to any third party prior that Person by or on behalf of the Company. The Company will promptly inform its Representatives of the Company’s obligations under this Section 6.4 and will instruct its Representatives to notify the date Company as promptly as practicable following receipt of this Agreement pursuant to the terms of any confidentiality agreements. an Acquisition Proposal.
(b) Except as specifically permitted by in this AgreementSection 6.4, the Company shall not, and shall not authorize or permit cause any of its Subsidiaries or any of their respective officers, directors trustees or employees or any investment banker, financial advisor, attorney, accountant or other representative Representative retained by it any of them not to, directly or indirectly, (i) solicit, initiate initiate, knowingly encourage or encourage facilitate (including by way of furnishing non-public information) any inquiries with respect to an Acquisition Proposal (as defined in Section 9.2), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders of the CompanyCompany Shareholder Approval, if the Company receives a bona fide Acquisition Proposal or a proposal that may reasonably be expected to lead to an Acquisition Proposal that was unsolicited not solicited after the date of this Agreement or that did not otherwise result from a breach of this Section 7.5(a)6.4, the Company may furnish furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the person Person who made such Acquisition Proposal proposal (a "Third Party"provided that the Company concurrently discloses the same such non-public information to Parent if such non-public information has not previously been disclosed to Parent) and may participate in discussions and negotiations regarding such Acquisition Proposal proposal if (A) the Company Board Board, or any committee thereof to which the power to consider such matters has been delegated, determines based on the advice of independent legal counsel in good faith, after consultation with its financial advisors and outside counsel, that failure to do so would be reasonably likely to constitute a breach of be inconsistent with its fiduciary duties to the Company's stockholders Company or its shareholders under applicable law, Law and (B) the Company Board determines that prior to taking such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as hereinafter defined). Notwithstanding the foregoingaction, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter enters into a confidentiality agreement with respect to such Third Party with terms proposal that contains provisions no less favorable to the Company restrictive than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, (as the case may bedefined in Section 6.6 hereof). The Company shall promptly notify (but promptly, and in any event within two 48 hours, notify Parent after receipt by the Company of (2x) calendar days) MergerCo of the Company's first receipt of a written any Acquisition Proposal by such Third Party and of Proposal, including the material terms and conditions thereof. Notwithstanding anything , to the contrary in this Agreementextent known, the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making any such Acquisition Proposal and, except as provided proposal and any material change in Section 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including any material amendments to the status of such Acquisition Proposal or any amendments or proposed amendments theretoproposal) between the Company and the Person making such Third Partyproposal (y) any request for non-public information relating to the Company or any of its Subsidiaries other than requests for information in the ordinary course of business and unrelated to an Acquisition Proposal, or (z) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal. The Company will not, and will cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement which prohibits the Company from providing information to Parent required to be provided to Parent pursuant to this Section 6.4(b). The Company will not, and will cause each of its Subsidiaries not to, terminate, waive, amend or modify any provision of any standstill or confidentiality agreement to which it or any of its Subsidiaries is a party, and the Company will, and will cause its Subsidiaries to, enforce the provisions of any such agreement.
(c) Prior to the Company Shareholder Approval, the Company Board may (i) withdraw, qualify or modify in a manner adverse to Parent or Merger Sub, the Company Recommendation, or if applicable, the approval or recommendation of any committee of the Company Board, of the Merger, (ii) approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal to holders of the Company Common Shares, (iii) authorize, permit or cause the Company to enter into any definitive agreement with respect to an Acquisition Proposal, or (iv) terminate this Agreement pursuant to Section 8.1(e), if, but only if, each of the following has occurred, in each such case, in respect of a Superior Proposal (as defined in Section 9.2): (A) the Company Board has determined in good faith, after consultation with outside counsel, that failure to take such action would be reasonably likely to be inconsistent with its duties to the Company or its shareholders under applicable Law, (B) the Company has provided Parent with written notice of its intention to take any such action, (C) the Company has given Parent three (3) Business Days after delivery of such notice to propose revisions to the terms of this Agreement (or make another proposal) and has negotiated in good faith with Parent with respect to such proposed revisions or other proposal, if any, and (D) following the three (3) Business Day period referred to in (C), such Superior Proposal remains a Superior Proposal and the Company Board has again made the determination described in clause (A) above. In the event that the Company Board complies with its obligations in the preceding sentence, the Company may enter into a definitive agreement to effect a Superior Proposal, but not prior to such time as the Company has provided Parent with written notice that the Company has elected to terminate this Agreement pursuant to Section 8.1(e) and otherwise complied with the Company’s obligations in the preceding sentence and in Section 8.1(e).
(d) Nothing contained in this Section 7.5 6.4 shall prohibit the Company from at any time taking and disclosing to its stockholders shareholders a position contemplated by Rule 14d-9 or Rule 14e-2 14e-2(a) promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(dAct or Item 1012(a) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactionsRegulation M-A; provided, however, that any disclosure other than a “stop, look and listen” or similar communication of the term "type contemplated by Rule 14d-9(f) under the Exchange Act will be deemed to be a withdrawal, modification or amendment of the Company Recommendation in a manner adverse to Parent or the Merger Sub unless the Company Board (x) expressly reaffirms its recommendation to the Company’s shareholders in favor of the Merger, (y) rejects such other Acquisition Proposal" shall , or (z) does not include otherwise comment on the Merger and merits (relative or otherwise) of the TransactionsAcquisition Proposal or the transactions contemplated by this Agreement.
Appears in 1 contract
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. Except as explicitly permitted by this Agreementhereunder, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, an Acquisition ProposalProposal (as hereinafter defined), or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; provided, however, thatthat if, at any time prior to the approval of this Agreement by the holders of Company Common Stock, the Company Board determines in good faith, based on the advice of independent legal counsel, that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders of under applicable law, the Company, if the Company receives an in response to a bona fide written Acquisition Proposal that (A) was unsolicited or that did not otherwise result from a breach of this Section 7.5(a7.4, and (B) is reasonably likely to lead to a Superior Proposal (as hereinafter defined), the Company 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 customary confidentiality agreement 25
(b) The Company Board shall not (1) withdraw or modify, or propose to withdraw or modify, in a "Third Party"manner adverse to Parent or Acquisition Sub, its approval or recommendation of this Agreement, the Offer or the Merger, (2) and may participate in negotiations regarding such approve or recommend an Acquisition Proposal if to its stockholders or (3) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other agreement with respect to an Acquisition Proposal (except for the confidentiality agreement referred to in clause (x) of Section 7.4(a) hereof) unless there is a Superior Proposal outstanding and the Company Board shall have (A) the Company Board determines determined in good faith, based on the advice of independent legal counsel counsel, that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely terminated this Agreement pursuant to lead to a Superior Proposal (as hereinafter definedSection 9.1(c)(ii). Notwithstanding the foregoing, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter into a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may be. The Company shall promptly notify (but in any event within two (2) calendar days) MergerCo of the Company's first receipt of a written Acquisition Proposal by such Third Party and of the material terms and conditions thereof. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party.
(c) Nothing contained in this Section 7.5 7.4 shall prohibit the Company from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(d) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that neither the term "Company nor the Company Board shall, except as permitted by Section 7.4(b), propose to approve or recommend an Acquisition Proposal" shall not include the Merger and the Transactions.
Appears in 1 contract
Samples: Merger Agreement (Logica PLC / Eng)
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be could reasonably be expected to lead to, any an Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements). Except as explicitly permitted by this Agreementhereunder, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it toit, directly or indirectly, to (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal or (iii) enter into any agreements, definitive or otherwise, regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders shareholders of the Company, if the Company receives an Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a), the Company may furnish non-public information with respect to the Company and the Company Subsidiaries to the person who made such Acquisition Proposal (a "Third Party") and may participate in discussions and negotiations regarding such Acquisition Proposal if (A) the Company Board determines (A) based on the advice of independent legal counsel counsel, that the failure to do so would be reasonably likely to constitute a breach of inconsistent with its fiduciary duties to the Company's stockholders shareholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely to lead to a Superior Acquisition Proposal (as hereinafter defineddefined below). Notwithstanding .
(b) At any time prior to the foregoingapproval of this Agreement by the shareholders of the Company, the Company shallBoard shall not (i) withdraw or modify in a manner adverse to MergerCo its approval or recommendation of this Agreement or the Merger, prior (ii) approve or recommend an Acquisition Proposal to furnishing non-public information its shareholders or (iii) cause the Company to enter into any agreement with respect to an Acquisition Proposal, unless in any such case the Company and Board shall have determined in good faith, based on the Company Subsidiaries advice of legal counsel, that failure to such Third Party, enter into a confidentiality agreement do so would be inconsistent with such Third Party with terms no less favorable its fiduciary duties to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may be. The Company shall promptly notify (but in any event within two (2) calendar days) MergerCo of the Company's first receipt shareholders under applicable law and, in the case of a written Acquisition Proposal by such Third Party and of the material terms and conditions thereof. Notwithstanding anything to the contrary in this Agreementclause (iii) above, the Company shall not be required to disclose to Parent or MergerCo have complied with the identity provisions of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Partyhereof.
(c) Nothing contained in this Section 7.5 shall prohibit the Company from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(d) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 1525% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.any
Appears in 1 contract
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request Immediately after the return execution of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. Except as permitted by this Agreement, the Company shall notwill terminate and cease any discussions or negotiations with any parties relating to an Acquisition Proposal. Neither the Company, and shall not authorize or permit nor any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it toit, shall, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders of the Company, if the Company receives an a bona fide written Acquisition Proposal that was unsolicited or and that did not otherwise result from a breach of this Section 7.5(a), the Company may furnish non-public information with respect to the Company and the Company Subsidiaries to the person who made such Acquisition Proposal (a "Third Party") and may participate in negotiations discussions regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent legal counsel in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to constitute a breach of inconsistent with its fiduciary duties to the Company's stockholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as hereinafter defined). Notwithstanding the foregoing, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter into a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may beProposal. The Company shall promptly notify (but in any event within two one (21) calendar daysbusiness day) MergerCo Parent of the Company's first receipt of a written Acquisition Proposal by such Third Party and of the material terms and conditions thereof. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making any such Acquisition Proposal and, except as provided in Section Sections 7.5(b) and 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party.
(b) Subject to Section 9.1(d)(ii) and prior to the approval of this Agreement by the stockholders of the Company, the Company Board may not (i) withdraw or modify in a manner material and adverse to Parent or MergerCo its approval or recommendation of this Agreement, (ii) approve or recommend an Acquisition Proposal to its stockholders or (iii) cause the Company to enter into any definitive agreement with respect to an Acquisition Proposal, unless, in each such case, in the event a Superior Proposal is made, the Company Board determines in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with its fiduciary duties to the Company's stockholders under applicable law. In the event that the Company Board makes such determination, the Company may enter into an agreement with respect to a Superior Proposal, but only forty-eight (48) hours after Parent's receipt of written notice (A) advising Parent that the Company Board has received a Superior Proposal and that the Company has elected to terminate this Agreement pursuant to Section 9.1(c)(i) of this Agreement and (B) setting forth such other information required to be included therein as provided in Section 9.1(c)(i).
(c) Nothing contained in this Section 7.5 shall prohibit the Company from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 14e-2(a) promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(d) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.
Appears in 1 contract
Samples: Merger Agreement (First Years Inc)
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. Except as permitted by this Agreement, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders of the Company, if the Company receives an Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a), the Company may furnish non-public information with respect to the Company and the Company Subsidiaries to the person who made such Acquisition Proposal (a "Third Party") and may participate in negotiations regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as hereinafter defined). Notwithstanding the foregoing, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter into a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may be. The Company shall promptly notify (but in any event within two (2) calendar days) MergerCo of the Company's first receipt of a written Acquisition Proposal by such Third Party and of the material terms and conditions thereof. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party.
(b) Subject to Section 9.1(d)(ii) hereof, at any time prior to the approval of this Agreement by the stockholders of the Company, the Company Board may (i) withdraw or modify in a manner material and adverse to Parent or MergerCo its approval or recommendation of this Agreement or the Merger, (ii) approve or recommend an Acquisition Proposal to its stockholders or (iii) cause the Company to enter into any definitive acquisition agreement with respect to an Acquisition Proposal, in each such case if (A) the Company Board determines based on the advice of independent legal counsel that failure to take such action would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, and (B) the Company Board determines based on the advice of its financial advisors that such Acquisition Proposal constitutes a Superior Proposal. Any such withdrawal, modification or change of the recommendation of the Company Board of this Agreement shall not change the approval of the Company Board of this Agreement for purposes of causing any state takeover statute or other state law to be inapplicable to the Transactions, including the Merger. A-21 108
(c) Nothing contained in this Section 7.5 shall prohibit the Company from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(d) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.
Appears in 1 contract
Samples: Proxy Statement (Instron Corp)
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be could reasonably be expected to lead to, any an Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements). Except as explicitly permitted by this Agreementhereunder, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal or (iii) enter into any agreements, definitive or otherwise, regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders of the Company, if the Company receives an Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a), the Company may furnish non-public information with respect to the Company and the Company Subsidiaries to the person who made such Acquisition Proposal (a "Third Party") and may participate in discussions and negotiations regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of be inconsistent with its fiduciary duties to the Company's stockholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal Acquisition Proposal.
(as hereinafter defined). Notwithstanding b) At any time prior to the foregoingapproval of this Agreement by the Stockholders of the Company, the Company shallBoard shall not (i) withdraw or modify in a manner adverse to MergerCo its approval or recommendation of this Agreement or the Merger, prior (ii) approve or recommend an Acquisition Proposal to furnishing non-public information its stockholders or (iii) cause the Company to enter into any agreement with respect to an Acquisition Proposal, unless in any such case the Company and Board shall have determined in good faith, based on the Company Subsidiaries advice of independent legal counsel, that failure to such Third Party, enter into a confidentiality agreement do so would be inconsistent with such Third Party with terms no less favorable its fiduciary duties to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may be. The Company shall promptly notify (but in any event within two (2) calendar days) MergerCo of the Company's first receipt stockholders under applicable law and, in the case of a written Acquisition Proposal by such Third Party and of the material terms and conditions thereof. Notwithstanding anything to the contrary in this Agreementclause (iii) above, the Company shall not be required to disclose to Parent or MergerCo have complied with the identity provisions of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Partyhereof.
(c) Nothing contained in this Section 7.5 shall prohibit It is understood that the Company taking no position or remaining neutral with respect to a tender or exchange offer from at any time taking a third party (a "Neutral Statement"), or making a recommendation in favor of such a tender or exchange offer, in a filing made pursuant to Rules 14d-9 and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 14e-2(a) promulgated under the Exchange Act shall constitute an adverse modification of its approval or making any disclosure required by Rule 14a-9 promulgated under recommendation of the Exchange ActMerger.
(d) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.acquire
Appears in 1 contract
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. Except as permitted by this Agreement, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; providedPROVIDED, howeverHOWEVER, that, at any time prior to the approval of this Agreement by the stockholders of the Company, if the Company receives an Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a), the Company may furnish non-public information with respect to the Company and the Company Subsidiaries to the person who made such Acquisition Proposal (a "Third PartyTHIRD PARTY") and may participate in negotiations regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as hereinafter defined). Notwithstanding the foregoing, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter into a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may be. The Company shall promptly notify (but in any event within two (2) calendar days) MergerCo of the Company's first receipt of a written Acquisition Proposal by such Third Party and of the material terms and conditions thereof. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party.
(b) Subject to Section 9.1(d)(ii) hereof, at any time prior to the approval of this Agreement by the stockholders of the Company, the Company Board may (i) withdraw or modify in a manner material and adverse to Parent or MergerCo its approval or recommendation of this Agreement or the Merger, (ii) approve or recommend an Acquisition Proposal to its stockholders or (iii) cause the Company to enter into any definitive acquisition agreement with respect to an Acquisition Proposal, in each such case if (A) the Company Board determines based on the advice of independent legal counsel that failure to take such action would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, and (B) the Company Board determines based on the advice of its financial advisors that such Acquisition Proposal constitutes a Superior Proposal. Any such withdrawal, modification or change of the recommendation of the Company Board of this Agreement shall not change the approval of the Company Board of this Agreement for purposes of causing any state takeover statute or other state law to be inapplicable to the Transactions, including the Merger.
(c) Nothing contained in this Section 7.5 shall prohibit the Company from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(d) As used in this Agreement, the term "Acquisition ProposalACQUISITION PROPOSAL" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.,
Appears in 1 contract
Samples: Merger Agreement (Instron Corp)
No Solicitations. (a) The Immediately after the execution of this Agreement, the Company represents will terminate and warrants that it has terminated cease any ongoing discussions or negotiations with any parties relating to, or that may be reasonably be expected to lead to, any an Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreementsProposal. Except as permitted by this Agreement, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it toit, directly or indirectly, to (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries with respect to an Acquisition Proposal, or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement the Merger by the stockholders of the Company, if the Company receives an a bona fide Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a6.5(a), the Company may furnish furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the person Person who made such Acquisition Proposal (a "“Third Party"”) and may participate in discussions and negotiations regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent legal counsel in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to constitute a breach of be inconsistent with its fiduciary duties to the Company's Company or its stockholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as hereinafter defined). Notwithstanding the foregoing, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter into a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may beProposal. The Company shall promptly notify (but in any event within two one (21) calendar daysBusiness Day) MergerCo Parent of the Company's ’s first receipt of a written any Acquisition Proposal or any inquiry with respect to an Acquisition Proposal by such Third Party and of the material terms and conditions thereof. The Company shall provide to Parent as soon as practicable after receipt of delivery thereof copies of any written Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(iSections 6.5(b) and 8.1(e), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party.
(b) Subject to Section 8.1(e) hereof, prior to the approval of the Merger by the stockholders of the Company, the Company Board may not (i) withdraw or modify in a manner material and adverse to Parent or MergerCo the Company’s approval or recommendation of the Merger, (ii) approve or recommend an Acquisition Proposal to its stockholders or (iii) cause the Company to enter into any definitive agreement with respect to an Acquisition Proposal, unless, in each such case, a Superior Proposal has been made and the Company Board determines in good faith, after consultation with outside counsel, that failure to take such action would be reasonably likely to be inconsistent with its duties to the Company or its stockholders under applicable law. In the event that the Company Board makes such determination, the Company may enter into a definitive agreement to effect a Superior Proposal, but not prior to forty-eight (48) hours after the Company has provided Parent with written notice (A) advising Parent that the Company Board has received a Superior Proposal and that the Company has elected to terminate this Agreement pursuant to Section 8.1(e) of this Agreement and (B) setting forth such other information required to be included therein as provided in Section 8.1(e).
(c) Nothing contained in this Section 7.5 6.5 shall prohibit the Company from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 14e-2(a) promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(d) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.
Appears in 1 contract
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. Except as permitted by this Agreement, the Company shall not, and shall not authorize or permit any of its Subsidiaries, or any of its or their officers, directors directors, affiliates or employees or any investment banker, financial advisor, attorney, accountant accountant, agent or other representative retained by it toacting on its or their behalf (collectively “Company Representatives”), directly or indirectly, to (i) solicit, initiate or encourage knowingly encourage, or knowingly take any other action to facilitate (including by way of furnishing non-public information), directly or take any other action to facilitateindirectly, any inquiries with respect to an Acquisition Proposal, or the making of any proposal that constitutes or may reasonably be expected to lead to, an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders receipt of the CompanyCompany Shareholder Approval, if the Company receives an a bona fide written Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a6.5(a), the Company may furnish furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the person Person who made such Acquisition Proposal (a "“Third Party"”) and may participate in discussions and negotiations regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent in good faith, after consultation with outside legal counsel counsel, that failure to do so would be reasonably likely to constitute a breach of inconsistent with its fiduciary duties to the Company's stockholders Company or its shareholders under applicable law, (B) prior to taking such action, the Company enters into a confidentiality agreement with respect to such Acquisition Proposal that contains provisions that are no less restrictive on the Person making such Acquisition Proposal than the provisions of the Confidentiality Agreement dated as of May 17, 2005 between the Company and ING Clarion Partners, LLC (the “Confidentiality Agreement”), and (BC) the Company Board determines in good faith, after consultation with its outside financial advisor, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal. The Company shall provide prompt (but in no event less than twenty-four hours following the Company’s initial receipt of any Acquisition Proposal) oral and written notice to Parent of (a) the receipt of any such Acquisition Proposal, and any modification or amendment to any such Acquisition Proposal, by the Company, any Company Subsidiary or any Company Representative, (b) the material terms and conditions of such Acquisition Proposal (c) the identity of such person or entity making any such Acquisition Proposal and (d) the Company’s intention to furnish information to, or enter into discussions or negotiations with, such person or entity. The Company shall continue to keep Parent informed of the status and details of any such Acquisition Proposal or inquiry (including any material changes to the status or material terms thereof).
(b) The Company Board may not (i) withdraw, qualify or modify, in a manner adverse to Parent or MergerCo, the approval or recommendation of the Company Board, or if applicable, the approval or recommendation of any committee of the Company Board, of the Merger, (ii) approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal (any action described in clauses (i) or (ii) being referred to as hereinafter defined)an “Adverse Recommendation Change”) or (iii) authorize or permit the Company or any of its Subsidiaries to enter into any agreement (each, an “Acquisition Agreement”) contemplating an Acquisition Proposal. Notwithstanding the foregoing, at any time prior to receipt of the Company shallShareholder Approval, prior the Company Board may take one of the actions described in clauses (i) or (ii) of the previous sentence in response to furnishing non-public information a Superior Proposal if the Company Board determines in good faith, after consultation with respect outside legal counsel, that failure to take such action would be inconsistent with its duties to the Company or its shareholders under applicable law (a “Subsequent Determination”) but only at a time that is after the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to approve or recommend such Superior Proposal, or the applicable amendment to a Superior Proposal, and subject to the Company’s compliance with this subsection (b). Any such written notice shall specify the material terms and conditions of such Superior Proposal, identify the person making such Superior Proposal and state that the Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (b)) During such three (3) Business Day period, the Company shall permit the Parent to propose to the Company’s Board adjustments to the terms and conditions of this Agreement with a view to enabling the Company to proceed with its recommendation to its shareholders without a Subsequent Determination.
(c) Upon execution of this Agreement, the Company and the Company Subsidiaries shall cease immediately and cause to such Third Partybe terminated any and all existing activities, enter into discussions or negotiations with any parties conducted heretofore with respect to an Acquisition Proposal by or on behalf of the Company or any of the Company Representatives and shall inform each of the Company Representatives of its obligations under this Section 6.5 and instruct each of them to act in a confidentiality agreement manner consistent with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may beobligations. The Company shall promptly notify (but request each Person with whom is has executed a confidentiality agreement within the twenty-four months prior to the date hereof in connection with its consideration of any event within two (2) calendar days) MergerCo Acquisition Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company's first receipt of a written Acquisition Proposal by such Third Party and Company or any of the material terms and conditions thereof. Notwithstanding anything Company Representatives.
(d) Subject to the contrary in this AgreementSection 6.5(b), the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party.
(c) Nothing contained in this Section 7.5 shall prohibit the Company from may at any time taking take and disclosing disclose to its stockholders holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2 14e-2(a) promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(dAct or Item 1012(a) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.Regulation M-A.
Appears in 1 contract
No Solicitations. (a) The Company represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. Except as permitted by this Agreement, the Company shall not, and shall not authorize or permit cause any of its Subsidiaries or any of its officers, directors trustees or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it toit, directly or indirectly, to (i) solicit, initiate initiate, knowingly encourage or encourage facilitate, (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries with respect to an Acquisition Proposal (as hereinafter defined), or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, or (ii) initiate, participate in or knowingly encourage any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement by the stockholders of the CompanyCompany Shareholder Approval, if the Company receives an a bona fide Acquisition Proposal that was unsolicited not solicited after the date of this Agreement or that did not otherwise result from a breach of this Section 7.5(a6.4(a), the Company may furnish furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the person Person who made such Acquisition Proposal (a "Third Party") and may participate in discussions and negotiations regarding such Acquisition Proposal if (A) the Company Board Board, or any committee thereof to which the power to consider such matters has been delegated, determines based on the advice of independent legal counsel in good faith (after having obtained sufficient preliminary information upon which to make such determination), after consultation with outside counsel, that failure to do so would be reasonably likely to constitute a breach of be inconsistent with its fiduciary duties to the Company's stockholders Company or its shareholders under applicable lawLaw, (B) prior to taking such action, the Company enters into a confidentiality agreement with respect to such Acquisition Proposal that contains provisions no less restrictive than the Confidentiality Agreement (as defined in Section 6.6 hereof) and (BC) the Company Board determines in good faith (after having obtained sufficient preliminary information upon which to make such determination), after consultation with its financial advisors, that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as hereinafter defined). Notwithstanding the foregoing, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter into a confidentiality agreement with such Third Party with terms no less favorable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may beProposal. The Company shall promptly notify (but promptly, and in any event within two (2) calendar days) MergerCo Business Days, notify Parent orally and in writing after receipt by the Company of the Company's first receipt of a written any Acquisition Proposal by such Third Party and of Proposal, including the material terms and conditions thereof, to the extent known. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent or MergerCo Merger Sub the identity of the Third Party making any such Acquisition Proposal and, except as provided in Section 9.1(c)(iSections 6.4(b) and 8.1(e), shall have no duty to notify or update Parent or MergerCo Merger Sub on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third PartyPerson. Immediately after the execution and delivery of this Agreement, the Company will, and will instruct its Subsidiaries, and their respective officers, trustees, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal.
(b) Subject to Section 8.1(e) hereof, prior to the Company Shareholder Approval, the Company Board may not (i) withdraw, qualify or modify in a manner material and adverse to Parent or Merger Sub, the Company Board's approval or recommendation, or if applicable, the approval or recommendation of any committee of the Company Board, of the Mergers, (ii) approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal to holders of the Company Common Shares or (iii) authorize, permit or cause the Company to enter into any definitive agreement with respect to an Acquisition Proposal, unless, in each such case, a Superior Proposal has been made and (x) the Company Board determines in good faith, after consultation with outside counsel, that failure to take such action would be reasonably likely to be inconsistent with its duties to the Company or its shareholders under applicable Law, and (y) the Company provides Parent with notice of its decision to withdraw or modify its approval or recommendation of this Agreement and the Mergers. In the event that the Company Board makes such determination, the Company may enter into a definitive agreement to effect a Superior Proposal, but not prior to three (3) Business Days after the Company (A) has provided Parent with written notice that the Company has elected to terminate this Agreement pursuant to Section 8.1(e) and otherwise complied with the Company's obligations in the preceding sentence, and (B) has set forth such other information required to be included therein as provided in Section 8.1(e).
(c) Upon execution of this Agreement, the Company and its Subsidiaries shall cease immediately, and cause to be terminated, any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to, or that would reasonably be expected to lead to, an Acquisition Proposal.
(d) Nothing contained in this Section 7.5 6.4 shall prohibit the Company from at any time taking and disclosing to its stockholders shareholders a position contemplated by Rule 14d-9 or Rule 14e-2 14e-2(a) promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(dAct or Item 1012(a) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.Regulation M-A.
Appears in 1 contract
No Solicitations. (a) The Company Each FW Entity represents and warrants that it has terminated any discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements). Except as permitted by this Agreement, the Company shall notno FW Entity, and no FW Entity shall not authorize or permit any of its respective officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it any of them to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of this Agreement the Transactions by the stockholders of the CompanyCompany and the partners of FWOP, if the Company any FW Entity receives an a written Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.5(a7.10(a) and the Board of Directors of the Company determines in good faith (after consultation with and consistent with the advice of its outside legal counsel and its financial advisor) that (A) such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as defined below), and (B) such action is consistent with the Company Company's Board of Directors' duties under applicable Maryland law, then the FW Entities may furnish information, including, without limitation, non-public information information, with respect to the Company and the Company Subsidiaries FW Entities to the person who made such Acquisition Proposal (a "Third Party") and the FW Entities may participate in negotiations regarding such Acquisition Proposal if (A) the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, and (B) the Company Board determines that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as hereinafter defined). Notwithstanding the foregoing, the Company shall, prior to furnishing non-public information with respect to the Company and the Company Subsidiaries to such Third Party, enter into a confidentiality agreement with such Third Party executes a confidentiality/standstill agreement with terms no less favorable the FW Entities in customary form and providing, in a form satisfactory to the Company than those contained in USRP Entities, that the Confidentiality Agreement, provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to such Third Party than those in the Confidentiality Agreement, the Confidentiality Agreement USRP Entities shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may behave third party beneficiary rights thereunder. The Company agrees not to amend any such agreement or waive any of its rights thereunder without the prior written approval of the USRP Entities other than in connection with the execution of a binding merger or other acquisition agreement providing for a Superior Proposal.
(b) The FW Entities shall promptly notify (but in any event within two (2) calendar daysone Business Day) MergerCo of the Companyany FW Entity's first receipt of a written Acquisition Proposal by such Third Party and of the identity of the offeror and the material terms and conditions thereof. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to disclose to Parent or MergerCo the identity of the Third Party making thereof and any such Acquisition Proposal and, except as provided in Section 9.1(c)(i), shall have no duty to notify or update Parent or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments subsequent material changes thereto) between the Company and such Third Party.
(c) The Company's Board of Directors shall not withdraw or modify, or propose to withdraw or modify, in a manner adverse to the USRP Entities, its approval or recommendation of the Transactions unless the Company's Board of Directors (i) shall have received an Acquisition Proposal that constitutes a Superior Proposal, and (ii) shall have determined in good faith, after consultation with and consistent with the advice of its outside legal counsel and its financial advisor, that the Transactions are no longer in the best interests of the Company's stockholders and that such withdrawal or modification is required to satisfy the Company's Board of Directors' duties, if any, under applicable Maryland law.
(d) Nothing contained in this Section 7.5 7.10 shall prohibit the Company a FW Entity from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(de) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) merger, consolidation or similar transaction involving the Companya FW Entity, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of the Company or the Company Subsidiaries FW Entities representing 1510% or more of the consolidated assets of the Company and the Company SubsidiariesFW Entities, (iii) issue, sale 30 38 or other disposition by the Company or FWOP of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 1510% or more of the votes associated with the outstanding securities of the CompanyCompany or FWOP, (iv) tender offer or exchange offer in which any person shall Person would acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15of 10% or more of the outstanding shares of Company Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to the Company or FWOP or (vi) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term "Acquisition Proposal" shall not include the Merger and the Transactions.
Appears in 1 contract
Samples: Master Agreement (First Washington Realty Trust Inc)
