Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any person (other than the Company) in connection with or in response to a Parent Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, agreement in principle or other agreement providing for any Parent Acquisition Transaction (except as contemplated by Section 7.1(k)); provided, however, that this Section 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Parent Shareholder Approval, from furnishing nonpublic information regarding Parent or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any person in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Parent Superior Offer if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a) (other than any such breach that is unintentional and immaterial in effect), (3) Parent gives to the Company the notice required by Section 5.5(b), and (4) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such person on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to the Company at substantially the same time (to the extent such information has not been previously furnished or made available by Parent to the Company); or (B) Parent from taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition Proposal, provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that would constitute a Parent Change in Recommendation in respect of a Parent Acquisition Proposal other than in compliance with Section 5.5(d).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Allegheny Energy, Inc), Agreement and Plan of Merger (Firstenergy Corp), Agreement and Plan of Merger
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shallshall not, and that it shall use cause its reasonable best efforts to cause directors and Subsidiaries not to, and shall instruct its and their respective Representatives not to (and shall not authorize or permit its and their respective Representatives to), directly or indirectly: indirectly (i) solicit, initiate, seek or solicit, or knowingly encourage or facilitate (including by way of furnishing non-public information) or knowingly take any other action designed that is reasonably expected to facilitate promote, directly or indirectly, any inquiries or the making, making or submission or announcement of any proposal that constitutes, or would reasonably be expected to lead to, a Parent Acquisition Proposal, ; (ii) furnish participate or engage in discussions (except to notify a Person that makes an inquiry or offer with respect to a Parent Acquisition Proposal of the existence of the provisions of this Section 7.05 or to clarify whether any nonpublic such inquiry, offer or proposal constitutes a Parent Acquisition Proposal) or negotiations with, or disclose any non-public information regarding or data relating to, Parent or any of its Subsidiaries or afford access to the properties, books or records of Parent or any of its Subsidiaries to any person Person that has made or could reasonably be expected to make, or in connection with, a Parent Acquisition Proposal; or (iii) enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement, with respect to a Parent Acquisition Proposal (other than an Acceptable Parent Confidentiality Agreement permitted pursuant to this Section 7.05). Parent shall, and shall cause its Subsidiaries to, and shall instruct its and their respective Representatives to, immediately cause to be terminated any solicitation, encouragement, discussion or negotiation with or involving any Person (other than the CompanyCompany and its Affiliates) in connection conducted heretofore by Parent or any Subsidiary thereof or any of its or their respective Representatives, with respect to a Parent Acquisition Proposal or in response which could reasonably be expected to lead to a Parent Acquisition Proposal, (iii) engage or participate and, in connection therewith, Parent shall immediately discontinue access by any discussions or negotiations with any person Person (other than Company and its Affiliates) to any data room (virtual or otherwise) established by Parent or its Representatives for such purpose. Within two (2) Business Days from the Companydate hereof, Parent shall request the return or destruction of all confidential, non-public information provided to Third Parties that have entered into confidentiality agreements with Parent or any Subsidiary thereof or who have otherwise been provided with confidential, non-public information since January 1, 2022 relating to a Parent Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, until obtaining the Parent Stockholder Approval, Parent and the Parent Board may take any actions described in clause (ii) of this Section 7.05 with respect to any Third Party if (x) Parent Acquisition Proposal, (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, agreement in principle or other agreement providing for any Parent Acquisition Transaction (except as contemplated by Section 7.1(k)); provided, however, that this Section 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Parent Shareholder Approval, from furnishing nonpublic information regarding Parent or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any person in response to an unsolicited, bona fide receives a written Parent Acquisition Proposal that from such Third Party (and such Parent Acquisition Proposal was not initiated, sought, solicited, knowingly encouraged or facilitated in violation of this Section 7.05) and (y) such proposal constitutes, or the Parent Board of Directors of Parent concludes determines in good faith, faith after consultation with its financial advisors, constitutes advisor and outside legal counsel that such proposal is or is could reasonably likely expected to lead to, a Parent Superior Proposal; provided, that Parent may deliver non-public information to such Third Party pursuant to this sentence only pursuant to an Acceptable Parent Confidentiality Agreement with respect to Parent. Nothing contained in this Section 7.05 shall prohibit Parent or the Parent Board from (i) taking and disclosing to the Parent Stockholders a position with respect to a Parent Superior Offer Acquisition Proposal pursuant to Rules 14d-9, 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure if (1) the Parent Board of Directors of Parent concludes has determined in good faith, faith after consultation with its outside legal counsel, counsel and financial advisor that the failure to take such action with respect to such Parent Acquisition Proposal do so would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a) (other than any such breach that is unintentional and immaterial in effect), (3) Parent gives obligations to the Company the notice required by Section 5.5(b)Parent Stockholders; provided, and (4) Parent furnishes any nonpublic information provided to the maker of that this sentence shall not permit the Parent Acquisition Proposal only pursuant Board to make a confidentiality agreement between Parent and such person on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its disclosure obligations under this AgreementAdverse Recommendation Change, including with respect to such proposal), and such furnished information is delivered to the Company at substantially the same time (except to the extent such information has not been previously furnished or made available permitted by Parent to the Company); or (B) Parent from taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition Proposal, provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that would constitute a Parent Change in Recommendation in respect of a Parent Acquisition Proposal other than in compliance with Section 5.5(d7.06(a).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Globus Medical Inc), Agreement and Plan of Merger (Nuvasive Inc)
Non-Solicitation by Parent. (a) Until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, Parent agrees that neither it nor any Subsidiary of Parentand its Subsidiaries shall not, nor any of and Parent shall cause its and their respective officers, directors or employees, shalland employees not to, and that it Parent shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any inquiry, discussion, request, offer or proposal that constitutes, or would reasonably be expected to lead to, a Parent Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding Parent or any of its Subsidiaries to, or afford access to the properties, books and records of Parent or any person (other than the Company) of its Subsidiaries to, any Third Party, in connection with or in response to, or that would be reasonably likely to lead to, a Parent Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than the Company) Third Party with respect to, or that would be reasonably likely to lead to, any Parent Acquisition Proposal, or (iv) adopt or approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, agreement in principle principle, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement or any other agreement (other than an Acceptable Confidentiality Agreement) or instrument providing for or relating to, any Parent Acquisition Transaction (except as contemplated by Section 7.1(k))Proposal; provided, however, that this Section 5.5 6.5(a) shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Parent Shareholder Stockholder Approval, from furnishing nonpublic information regarding Parent or taking any of its Subsidiaries to, the actions described in clauses (ii) or entering into or participating in discussions or negotiations with, any person (iii) above in response to an unsolicited, a bona fide written Parent Acquisition Proposal received by Parent or its directors, officers, employees or Representatives from a Third Party after the execution and delivery of this Agreement which did not result from or arise in connection with a breach of this Section 6.5(a) that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Parent Superior Offer not withdrawn if (but only if): (1) the Board of Directors of Parent concludes determines in good faith, after consultation with its a financial advisor of nationally recognized reputation and outside legal counsel, that such Parent Acquisition Proposal constitutes or is reasonably expected to result in a Parent Superior Offer, (2) the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a) (other than any such breach that is unintentional and immaterial in effect)Law, (3) Parent gives to the Company the notice (which notice must state that Parent’s Board of Directors’ has made the determinations contemplated by the foregoing clauses (1) and (2)), required by Section 5.5(b6.5(b), and (4) Parent furnishes any nonpublic non-public information provided and/or provides access to the maker of the such Third Party (or its directors, officers, employees or Representatives) only after such Third Party enters into an Acceptable Confidentiality Agreement with Parent Acquisition Proposal and only pursuant to a confidentiality agreement between Parent and such person on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to the Company at substantially the same time (to the extent such information has not been previously furnished or made available by Parent to the Company)thereto; or (B) Parent from taking and disclosing waiving any standstill or similar provisions in any Acceptable Confidentiality Agreement entered into after the date of this Agreement in order to its shareholders permit the counterparty thereto to make a position contemplated by Rule Parent Acquisition Proposal or (C) Parent from complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal, ; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has may have under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that would constitute a Parent Change in Recommendation in respect of a Parent Acquisition Proposal other than in compliance with Section 5.5(d)Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (GenOn Energy, Inc.), Agreement and Plan of Merger (NRG Energy, Inc.)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parentits Subsidiaries, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any person (other than the Company) Person in connection with or in response to a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person (other than the Company) Person with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.7(e), approve, endorse or recommend any Parent Acquisition Proposal Proposal, or (v) except in connection with a Parent Change of Recommendation pursuant to 6.7(e), enter into any letter of intent, arrangement, agreement in principle or other agreement providing for understanding relating to any Parent Acquisition Transaction (except as contemplated by Section 7.1(k))Transaction; provided, however, that this Section 5.5 6.7 shall not prohibit (A) Parent, or the Board of Directors of ParentParent or any committee thereof, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Parent Shareholder Stockholder Approval, from furnishing nonpublic information regarding Parent or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any person Person in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent or any committee thereof concludes in good faith, after consultation with its outside legal counsel and a financial advisorsadvisor, constitutes or is would reasonably likely be expected to lead to result in a Parent Superior Offer if (1) the Board of Directors of Parent or any committee thereof concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board result in a breach of Directors of their its fiduciary duties under applicable LawsLaw, (2) such Parent Acquisition Proposal did not result from a material breach of this Section 5.5(a) (other than any such breach that is unintentional and immaterial in effect)6.7, (3) prior thereto Parent gives to has given the Company the notice required by Section 5.5(b6.7(b), and (4) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such person on Person containing customary terms no and conditions that in the aggregate are not materially less favorable to Parent restrictive than those contained in the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its disclosure obligations under this Non-Disclosure Agreement, including with respect to such proposal), and such furnished information is delivered to the Company at substantially the same time (to the extent such information has not been previously furnished or made available by Parent to the Company); or (B) Parent from taking and disclosing to its shareholders a position contemplated by complying with Rule 14d-9 and or Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal, providedincluding any so called “stop, howeverlook and listen” communications, or making any other statement or disclosure that Parent determines in good faith, after consultation with its outside legal counsel, that compliance with the failure of Parent to make such rules shall not in any way limit statement or modify disclosure would reasonably be expected to be a violation of applicable Law; provided that the effect that any action taken pursuant to such rules has under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that would constitute of Parent may make a Parent Change of Recommendation only in Recommendation in respect of a Parent Acquisition Proposal other than in compliance accordance with Section 5.5(d6.7(e).
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (S1 Corp /De/), Agreement and Plan of Merger and Reorganization (Fundtech LTD)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any person Person (other than the Company) in connection with or in response to a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person Person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, agreement in principle arrangement or other agreement providing for understanding relating to any Parent Acquisition Transaction (except other than a confidentiality agreement as contemplated by this Section 7.1(k6.5(a)); provided, however, that this Section 5.5 6.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or RepresentativeRepresentative of Parent or any of its Subsidiaries, prior to the receipt of obtaining the Parent Shareholder Stockholder Approval, from furnishing nonpublic information regarding Parent or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any person Person in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or is could reasonably likely be expected to lead to result in a Parent Superior Offer if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a material breach of this Section 5.5(a) (other than any such breach that is unintentional and immaterial in effect)6.5, (32) prior thereto Parent gives to has given the Company the notice required by Section 5.5(b), 6.5(b) and (43) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such person on Person containing customary terms no less favorable and conditions substantially similar to Parent than those contained in the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to the Company at substantially the same time (to the extent such information has not been previously furnished or made available by Parent to the Company); or (B) Parent from taking and disclosing to its shareholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal, provided, however, that compliance with such rules shall not in any way limit or modify the effect Proposal (it being understood that any action taken pursuant to such rules has under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action disclosure that would constitute constitutes a Parent Change in of Recommendation in shall be subject to the provisions of this Section 6.5 with respect of a Parent Acquisition Proposal other than in compliance with Section 5.5(dthereto).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Exelon Corp), Agreement and Plan of Merger (Constellation Energy Group Inc)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any proposal that constitutes, or would reasonably be expected to lead to, a Parent Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding Parent or any of its Subsidiaries to, or afford access to the properties, books and records of Parent to, any person (other than the Company) ), in connection with or in response to a Parent Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement in principle or any other agreement providing for any Parent Acquisition Transaction (except as contemplated by Section 7.1(k)); provided, however, that this Section 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Parent Shareholder Stockholder Approval, from furnishing nonpublic information regarding Parent or taking any of its Subsidiaries to, the actions described in clauses (ii) or entering into or participating in discussions or negotiations with, any person (iii) above in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely expected to lead to result in a Parent Superior Offer if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a) (other than any such breach that is unintentional and immaterial in effect), (3) Parent gives to the Company the notice required by Section 5.5(b), and (4) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such person on substantially the same terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to confidentiality as the Company at substantially the same time (to the extent such information has not been previously furnished or made available by Parent to the Company)Confidentiality Agreement; or (B) Parent from taking and disclosing to its shareholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal, ; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that would constitute a Parent Change in Recommendation in respect of a Parent Acquisition Proposal other than in compliance with Section 5.5(d)Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Rri Energy Inc), Agreement and Plan of Merger (Mirant Corp)
Non-Solicitation by Parent. (a) Until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, Parent agrees that neither it nor any Subsidiary of Parentand its Subsidiaries shall not, nor any of and Parent shall cause its and their respective officers, directors or employees, shalland employees not to, and that it Parent shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any inquiry, discussion, request, offer or proposal that constitutes, or would reasonably be expected to lead to, a Parent Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding Parent or any of its Subsidiaries to, or afford access to the properties, books and records of Parent or any person (other than the Company) of its Subsidiaries to, any Third Party, in connection with or in response to, or that would be reasonably likely to lead to, a Parent Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than the Company) Third Party with respect to, or that would be reasonably likely to lead to, any Parent Acquisition Proposal, or (iv) adopt or approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, agreement in principle principle, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement or any other agreement (other than an Acceptable Confidentiality Agreement) or instrument providing for or relating to, any Parent Acquisition Transaction (except as contemplated by Section 7.1(k))Proposal; provided, however, that this Section 5.5 6.5(a) shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt Representative from taking any of the Parent Shareholder Approval, from furnishing nonpublic information regarding Parent actions described in clauses (ii) or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any person (iii) above in response to an unsolicited, a bona fide written Parent Acquisition Proposal received by Parent or its directors, officers, employees or Representatives from a Third Party after the execution and delivery of this Agreement which did not result from or arise in connection with a breach of this Section 6.5(a) that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Parent Superior Offer not withdrawn if (but only if): (1) the Board of Directors of Parent concludes determines in good faith, after consultation with its a financial advisor of nationally recognized reputation and outside legal counsel, that such Parent Acquisition Proposal constitutes or is reasonably expected to result in a Parent Superior Offer, (2) the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a) (other than any such breach that is unintentional and immaterial in effect)Law, (3) Parent gives to the Company the notice (which notice must state that Parent’s Board of Directors’ has made the determinations contemplated by the foregoing clauses (1) and (2)), required by Section 5.5(b6.5(b), and (4) Parent furnishes any nonpublic non-public information provided and/or provides access to the maker of the such Third Party (or its directors, officers, employees or Representatives) only after such Third Party enters into an Acceptable Confidentiality Agreement with Parent Acquisition Proposal and only pursuant to a confidentiality agreement between Parent and such person on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to the Company at substantially the same time (to the extent such information has not been previously furnished or made available by Parent to the Company)thereto; or (B) Parent from taking and disclosing waiving any standstill or similar provisions in any Acceptable Confidentiality Agreement entered into after the date of this Agreement in order to its shareholders permit the counterparty thereto to make a position contemplated by Rule Parent Acquisition Proposal or (C) Parent from complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal, ; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has may have under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that would constitute a Parent Change in Recommendation in respect of a Parent Acquisition Proposal other than in compliance with Section 5.5(d)Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fitlife Brands, Inc.), Agreement and Plan of Merger (iSatori, Inc.)
Non-Solicitation by Parent. (a) Beginning on the date hereof and continuing until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article VII, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to, (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, ; (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any person (other than the Company) Person in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, ; (iii) engage or participate in any discussions or negotiations with any person (other than the Company) Person with respect to any Parent Acquisition Proposal, ; (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, intent or similar document or any agreement in principle contemplating or other agreement providing for otherwise relating to any Parent Acquisition Transaction (except as contemplated by Section 7.1(k)other than an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt adoption of this Agreement by the Parent Shareholder Stockholder Approval, this Section 5.13(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any person Person in response to an unsolicited, any bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faiththat, after consultation with its a financial advisorsadvisor and outside legal counsel, constitutes Parent’s board of directors determines in good faith is, or is would reasonably likely be expected to lead to result in, a Parent Superior Offer (and is not withdrawn) if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a5.13(a); (2) (other than any the board of directors of Parent concludes in good faith, after having taken into account the advice of its outside legal counsel, that, in light of such Acquisition Proposal and the terms of this Agreement, failure to take such action would result in a breach that is unintentional and immaterial in effect), of its fiduciary obligations to Parent’s stockholders under applicable Legal Requirements; (3) at least two (2) Business Days prior to furnishing any such information to, or entering into discussions with, such Person, Parent gives Company written notice of the identity of such Person, the terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) made thereby and of Parent’s intention to the Company the notice required by Section 5.5(b)furnish information to, or enter into discussions with, such Person, and (4) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a receives from such Person an executed confidentiality agreement between Parent and such person on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict between Parent from complying with its and Company and containing customary limitations on the use and disclosure obligations under this Agreement, including with respect of all nonpublic written and oral information furnished to such proposal)Person by or on behalf of Parent as well as customary “standstill” provisions (an, “Acceptable Parent Confidentiality Agreement”) and (4) substantially contemporaneous with furnishing any such furnished information is delivered to the such Person, Parent furnishes such nonpublic information to Company at substantially the same time (to the extent such nonpublic information has not been previously furnished or made available by Parent to the Company); . Without limiting the generality of the foregoing, Parent acknowledges and agrees that in the event any Representative of Parent (or its Subsidiaries), whether or not such Representative is purporting to act on behalf of Parent (B) Parent from taking and disclosing to or its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition ProposalSubsidiaries), provided, however, that compliance with such rules shall not in any way limit or modify the effect that takes any action that, if taken pursuant to such rules has under any other provision of this Agreement and in no event shall by Parent (or the Parent Board of Directors or a committee thereof take any action that its Subsidiaries), would constitute a breach of this Section 5.13, the taking of such action by such Representative will be deemed to constitute a breach of this Section 5.13 by Parent Change in Recommendation in respect for purposes of a Parent Acquisition Proposal other than in compliance with Section 5.5(d).this Agreement. 51
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Alliqua BioMedical, Inc.)
Non-Solicitation by Parent. (a) During the Pre-Closing Period, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to, (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any person (other than the Company) Person in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than the Company) Person with respect to any Parent Acquisition Proposal, (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, intent or similar document or any agreement in principle contemplating or other agreement providing for otherwise relating to any Parent Acquisition Transaction (except as contemplated by Section 7.1(k)other than an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt adoption of this Agreement by the Parent Shareholder Stockholder Approval, this Section 5.13(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any person Person in response to an unsolicited, bona fide written Parent Acquisition Proposal that that, after consultation with its outside financial and legal advisor, Parent’s board of directors determines in good faith is, or would reasonably be expected to result in, a Superior Offer (and is not withdrawn) if (1) neither Parent nor any Representative of Parent (or its Subsidiaries) will have breached this Section 5.13(a), (2) the Board board of Directors directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Parent Superior Offer if (1) having taken into account the Board advice of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action is required in order for the board of directors of Parent to comply with respect its fiduciary obligations to such the Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their fiduciary duties Stockholders under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a) (other than any such breach that is unintentional and immaterial in effect)Legal Requirements, (3) at least two (2) Business Days prior to furnishing any such information to, or entering into discussions with, such Person, Parent gives Company written notice of the identity of such Person and of Parent’s intention to the Company the notice required by Section 5.5(b)furnish information to, or enter into discussions with, such Person, and (4) Parent furnishes any nonpublic information provided receives from such Person an executed confidentiality agreement on terms no more favorable to Parent than the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such person Company and containing customary limitations on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its use and disclosure obligations under this Agreement, including with respect of all nonpublic written and oral information furnished to such proposal)Person by or on behalf of Parent as well as customary “standstill” provisions (an, and “Acceptable Parent Confidentiality Agreement”) (4) at least two (2) Business Days prior to furnishing any such furnished information is delivered to the such Person, Parent furnishes such nonpublic information to Company at substantially the same time (to the extent such nonpublic information has not been previously furnished or made available by Parent to the Company); or (B) Parent from taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition Proposal, provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that would constitute a Parent Change in Recommendation in respect of a Parent Acquisition Proposal other than in compliance with Section 5.5(d).. 63
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Ohr Pharmaceutical Inc)
Non-Solicitation by Parent. (a) During the Pre-Closing Period, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to, (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any person (other than the Company) Person in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than the Company) Person with respect to any Parent Acquisition Proposal, (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, intent or similar document or any agreement in principle contemplating or other agreement providing for otherwise relating to any Parent Acquisition Transaction (except as contemplated by Section 7.1(k)other than an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt adoption of this Agreement by the Parent Shareholder Stockholder Approval, this Section 5.13(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any person Person in response to an unsolicited, bona fide written Parent Acquisition Proposal that that, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel and financial advisor, Parent’s board of directors determines in good faith is, or would reasonably be expected to result in, a Superior Offer (and is not withdrawn) if (1) neither Parent nor any Representative of Parent (or its Subsidiaries) will have breached this Section 5.13(a), (2) the Board board of Directors directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Parent Superior Offer if (1) having taken into account the Board advice of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action is required in order for the board of directors of Parent to comply with respect its fiduciary obligations to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their fiduciary duties Parent’s stockholders under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a) (other than any such breach that is unintentional and immaterial in effect)Legal Requirements, (3) at least two (2) business days prior to furnishing any such information to, or entering into discussions with, such Person, Parent gives Company written notice of the identity of such Person and of Parent’s intention to the Company the notice required by Section 5.5(b)furnish information to, or enter into discussions with, such Person, and (4) Parent furnishes any nonpublic information provided receives from such Person an executed confidentiality agreement on terms no more favorable to Parent than the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such person Company and containing customary limitations on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its use and disclosure obligations under this Agreement, including with respect of all nonpublic written and oral information furnished to such proposal)Person by or on behalf of Parent as well as customary “standstill” provisions (an, and “Acceptable Parent Confidentiality Agreement”) (4) at least two (2) business days prior to furnishing any such furnished information is delivered to the such Person, Parent furnishes such nonpublic information to Company at substantially the same time (to the extent such nonpublic information has not been previously furnished or made available by Parent to the Company); . Without limiting the generality of the foregoing, Parent acknowledges and agrees that in the event any Representative of Parent (or its Subsidiaries), whether or not such Representative is purporting to act on behalf of Parent (B) Parent from taking and disclosing to or its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition ProposalSubsidiaries), provided, however, that compliance with such rules shall not in any way limit or modify the effect that takes any action that, if taken pursuant to such rules has under any other provision of this Agreement and in no event shall by Parent (or the Parent Board of Directors or a committee thereof take any action that its Subsidiaries), would constitute a breach of this Section 5.13, the taking of such action by such Representative will be deemed to constitute a breach of this Section 5.13 by Parent Change in Recommendation in respect for purposes of a Parent Acquisition Proposal other than in compliance with Section 5.5(d)this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Regado Biosciences Inc)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to, (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal or take any action that could reasonably be expected to lead to any Parent Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any person (other than the Company) Person in connection with or in response to a any Parent Acquisition Proposal or an inquiry or indication of interest that could lead to any Parent Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than the Company) Person with respect to any Parent Acquisition Proposal, (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, intent or similar document or any agreement in principle contemplating or other agreement providing for otherwise relating to any Parent Acquisition Transaction (except as contemplated by Section 7.1(k))Transaction; provided, however, that that, this Section 5.5 5.12(a) shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Parent Shareholder Approval, from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any person Person in response to an unsolicited, bona fide written any Parent Acquisition Proposal that, after consultation with an independent reputable financial advisor outside legal counsel, Parent’s board of directors determines in good faith is, or would reasonably be expected to result in, a Parent Superior Offer that is submitted to Parent by such Person (and not withdrawn) if (1) neither the Board Parent nor any Representative of Directors Parent (or its Subsidiaries) shall have breached or taken any action inconsistent with any of the provisions set forth in this Section 5.12(a) with respect to the foregoing, (2) the board of directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Parent Superior Offer if (1) having taken into account the Board advice of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by Parent board of directors’ fiduciary obligations to the Board of Directors of their fiduciary duties Parent’s stockholders under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a) (other than any such breach that is unintentional and immaterial in effect)Legal Requirements, (3) at least two (2) business days prior to furnishing any such information to, or entering into discussions with, such Person, Parent gives Company written notice of the identity of such Person and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing customary limitations on the Company the notice required use and disclosure of all nonpublic written and oral information furnished to such Person by Section 5.5(b)or on behalf of Parent and containing customary “standstill” provisions, and (4) at least two (2) business days prior to furnishing any such information to such Person, Parent furnishes any such nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such person on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to the Company at substantially the same time (to the extent such nonpublic information has not been previously furnished or made available by Parent to the Company); or (B) . Without limiting the generality of the foregoing, Parent from taking acknowledges and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition Proposal, provided, however, that compliance with such rules shall not in any way limit or modify the effect agrees that any action taken pursuant inconsistent with of any of the provisions set forth in the preceding sentence by any Representative of Parent (or its Subsidiaries), whether or not such Representative is purporting to such rules has under any other provision act on behalf of Parent (or its Subsidiaries), shall be deemed to constitute a breach of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that would constitute a Parent Change in Recommendation in respect of a Parent Acquisition Proposal other than in compliance with Section 5.5(d)5.12(a) by Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Vaxgen Inc)
Non-Solicitation by Parent. (a) Beginning on the date hereof and continuing until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article 7, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to, (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any person (other than the Company) Person in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than the Company) Person with respect to any Parent Acquisition Proposal, (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, intent or similar document or any agreement in principle contemplating or other agreement providing for otherwise relating to any Parent Acquisition Transaction (except as contemplated by Section 7.1(k)other than an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt adoption of this Agreement by the Parent Shareholder Stockholder Approval, this Section 5.13(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, or facilitating or cooperating with the submission of, an Acquisition Proposal made by any person Person in response to an unsolicited, bona fide written Parent any such Acquisition Proposal that the Board of Directors of Parent concludes in good faiththat, after consultation with its a financial advisorsadvisor and outside legal counsel, constitutes Parent’s board of directors determines in good faith is, or is would reasonably likely be expected to lead to result in, a Parent Superior Offer (and is not withdrawn) if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a5.13(a), (2) (other than any the board of directors of Parent concludes in good faith, after having taken into account the advice of its outside legal counsel, that such breach that action is unintentional and immaterial required in effect)order for the board of directors of Parent to comply with its fiduciary obligations to the Parent’s stockholders under applicable Legal Requirements, (3) at least two (2) Business Days prior to furnishing any such information to, or entering into discussions with, such Person, Parent gives Company written notice of the identity of such Person, the terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) made thereby and of Parent’s intention to the Company the notice required by Section 5.5(b)furnish information to, or enter into discussions with, such Person, and (4) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a receives from such Person an executed confidentiality agreement between Parent and such person on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict between Parent from complying with its and Company and containing customary limitations on the use and disclosure obligations under this Agreement, including with respect of all nonpublic written and oral information furnished to such proposal)Person by or on behalf of Parent as well as customary “standstill” provisions (an, and “Acceptable Parent Confidentiality Agreement”) (4) substantially contemporaneous with furnishing any such furnished information is delivered to the such Person, Parent furnishes such nonpublic information to Company at substantially the same time (to the extent such nonpublic information has not been previously furnished or made available by Parent to the Company); . Without limiting the generality of the foregoing, Parent acknowledges and agrees that in the event any Representative of Parent (or its Subsidiaries), whether or not such Representative is purporting to act on behalf of Parent (B) Parent from taking and disclosing to or its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition ProposalSubsidiaries), provided, however, that compliance with such rules shall not in any way limit or modify the effect that takes any action that, if taken pursuant to such rules has under any other provision of this Agreement and in no event shall by Parent (or the Parent Board of Directors or a committee thereof take any action that its Subsidiaries), would constitute a breach of this Section 5.13, the taking of such action by such Representative will be deemed to constitute a breach of this Section 5.13 by Parent Change in Recommendation in respect for purposes of a Parent Acquisition Proposal other than in compliance with Section 5.5(d)this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Mast Therapeutics, Inc.)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any proposal that constitutes, or would reasonably be expected to lead to, a Parent Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding Parent or any of its Subsidiaries to, or afford access to the properties, books and records of Parent to, any person (other than the Company) ), in connection with or in response to a Parent Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement in principle or any other agreement providing for any Parent Acquisition Transaction (except as contemplated by where Parent has validly terminated this Agreement pursuant to Section 7.1(k7.1(j)); provided, however, that this Section 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Parent Shareholder Stockholder Approval, from furnishing nonpublic information regarding Parent or taking any of its Subsidiaries to, the actions described in clauses (ii) or entering into or participating in discussions or negotiations with, any person (iii) above in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely expected to lead to result in a Parent Superior Offer if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a) (other than any such breach that is unintentional and immaterial in effect), (3) Parent gives to the Company the notice required by Section 5.5(b), and (4) Parent furnishes any nonpublic non-public information provided to, and affords access to the properties, books and records of Parent to, the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such person on substantially the same terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its disclosure obligations under this Agreement, including with respect to such proposal), confidentiality and such furnished information is delivered to use of “Evaluation Material” (as defined in the Company at substantially Confidentiality Agreement) as the same time (to the extent such information has not been previously furnished or made available by Parent to the Company)Confidentiality Agreement; or (B) Parent from taking and disclosing to its shareholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal, ; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that would constitute a Parent Change in Recommendation in respect of a Parent Acquisition Proposal other than in compliance with Section 5.5(d)Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (KLX Energy Services Holdings, Inc.)
Non-Solicitation by Parent. (a) Beginning on the date hereof and continuing until the earlier of the Parent agrees that neither it nor any Subsidiary of ParentStockholder Approval or the date, nor any of their respective officersif any, directors or employeeson which this Agreement is terminated pursuant to Article VII, shall, Parent will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, ; (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any person (other than the Company) Person in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, ; (iii) engage or participate in any discussions or negotiations with any person (other than the Company) Person with respect to any Parent Acquisition Proposal, ; (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, intent or similar document or any agreement in principle contemplating or other agreement providing for otherwise relating to any Parent Acquisition Transaction (except as contemplated by Section 7.1(k)other than an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt adoption of this Agreement by the Parent Shareholder Stockholder Approval, this Section 5.11(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any person Person in response to an unsolicited, any bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faiththat, after consultation with its a financial advisorsadvisor and outside legal counsel, constitutes the Parent Board determines in good faith is, or is would reasonably likely be expected to lead to result in, a Parent Superior Offer (and is not withdrawn) if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a5.11(a); (2) (other than any the Parent Board concludes in good faith, after having taken into account the advice of its outside legal counsel, that, in light of such Acquisition Proposal and the terms of this Agreement, failure to take such action would result in a breach that is unintentional and immaterial in effect), of its fiduciary obligations to Parent’s stockholders under applicable Legal Requirements; (3) at least two (2) Business Days prior to furnishing any such information to, or entering into discussions with, such Person, Parent gives Company written notice of the identity of such Person, the terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) made thereby and of Parent’s intention to the Company the notice required by Section 5.5(b)furnish information to, or enter into discussions with, such Person, and (4) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a receives from such Person an executed confidentiality agreement between Parent and such person on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict between Parent from complying with its and Company and containing customary limitations on the use and disclosure obligations under this Agreement, including with respect of all nonpublic written and oral information furnished to such proposal)Person by or on behalf of Parent as well as customary “standstill” provisions, and (4) substantially contemporaneous with furnishing any such furnished information is delivered to the such Person, Parent furnishes such nonpublic information to Company at substantially the same time (to the extent such nonpublic information has not been previously furnished or made available by Parent to the Company); . Without limiting the generality of the foregoing, Parent acknowledges and agrees that in the event any Representative of Parent (or its Subsidiaries), whether or not such Representative is purporting to act on behalf of Parent (B) Parent from taking and disclosing to or its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition ProposalSubsidiaries), provided, however, that compliance with such rules shall not in any way limit or modify the effect that takes any action that, if taken pursuant to such rules has under any other provision of this Agreement and in no event shall by Parent (or the Parent Board of Directors or a committee thereof take any action that its Subsidiaries), would constitute a breach of this Section 5.11, the taking of such action by such Representative will be deemed to constitute a breach of this Section 5.11 by Parent Change in Recommendation in respect for purposes of a Parent Acquisition Proposal other than in compliance with Section 5.5(d)this Agreement.
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Non-Solicitation by Parent. (a) Beginning on the date hereof and continuing until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article VII, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, ; (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any person (other than the Company) Person in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, ; (iii) engage or participate in any discussions or negotiations with any person (other than the Company) Person with respect to any Parent Acquisition Proposal, ; (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, intent or similar document or any agreement in principle contemplating or other agreement providing for otherwise relating to any Parent Acquisition Transaction (except as contemplated by Section 7.1(k)other than an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt adoption of this Agreement by the Parent Shareholder Stockholder Approval, this Section 5.13(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any person Person in response to an unsolicited, any bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faiththat, after consultation with its a financial advisorsadvisor and outside legal counsel, constitutes the Parent Board determines in good faith is, or is would reasonably likely be expected to lead to result in, a Parent Superior Offer (and is not withdrawn) if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a5.13(a); (2) (other than any the Parent Board concludes in good faith, after having taken into account the advice of its outside legal counsel, that, in light of such Acquisition Proposal and the terms of this Agreement, failure to take such action would result in a breach that is unintentional and immaterial in effect), of its fiduciary obligations to Parent’s stockholders under applicable Legal Requirements; (3) at least two (2) Business Days prior to furnishing any such information to, or entering into discussions with, such Person, Parent gives Company written notice of the identity of such Person, the terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) made thereby and of Parent’s intention to the Company the notice required by Section 5.5(b)furnish information to, or enter into discussions with, such Person, and (4) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a Xxxxxx receives from such Person an executed confidentiality agreement between Parent and such person on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict between Parent from complying with its and Company and containing customary limitations on the use and disclosure obligations under this Agreement, including with respect of all nonpublic written and oral information furnished to such proposalPerson by or on behalf of Parent as well as customary “standstill” provisions (an “Accepted Confidentiality Agreement”), and (4) substantially contemporaneous with furnishing any such furnished information is delivered to the such Person, Parent furnishes such nonpublic information to Company at substantially the same time (to the extent such nonpublic information has not been previously furnished or made available by Parent to the Company); . Without limiting the generality of the foregoing, Xxxxxx acknowledges and agrees that in the event any Representative of Parent (or its Subsidiaries), whether or not such Representative is purporting to act on behalf of Parent (B) Parent from taking and disclosing to or its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition ProposalSubsidiaries), provided, however, that compliance with such rules shall not in any way limit or modify the effect that takes any action that, if taken pursuant to such rules has under any other provision of this Agreement and in no event shall by Parent (or the Parent Board of Directors or a committee thereof take any action that its Subsidiaries), would constitute a breach of this Section 5.13, the taking of such action by such Representative will be deemed to constitute a breach of this Section 5.13 by Parent Change in Recommendation in respect for purposes of a Parent Acquisition Proposal other than in compliance with Section 5.5(d)this Agreement.
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Non-Solicitation by Parent. (a) Beginning on the date hereof and continuing until the earlier of the Closing Date or the date, if any, on which this Agreement is terminated pursuant to Article 7, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to will cause its and their respective Representatives Subsidiaries or any Representative of Parent or its Subsidiaries, not to (and shall not authorize or permit its and their respective Representatives to), directly or indirectly: , (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any person (other than the Company) Person in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than the Company) Person with respect to any Parent Acquisition Proposal, (iv) approve, endorse or recommend any Parent Acquisition Proposal or (v) enter into any letter of intent, intent or similar document or any agreement in principle contemplating or other agreement providing for otherwise relating to any Parent Acquisition Transaction (except as contemplated by Section 7.1(k)other than an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative, prior to the receipt adoption of this Agreement by the Parent Shareholder Approval, this Section 5.13(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, or facilitating or cooperating with the submission of, an Acquisition Proposal made by any person Person in response to an unsolicited, bona fide written Parent any such Acquisition Proposal that the Board of Directors of Parent concludes in good faiththat, after consultation with its a financial advisorsadvisor and outside legal counsel, constitutes Parent’s board of directors determines in good faith is, or is would reasonably likely be expected to lead to result in, a Parent Superior Offer (and is not withdrawn) if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a breach of this Section 5.5(a5.13(a), (2) (other than any the board of directors of Parent concludes in good faith, after having taken into account the advice of its outside legal counsel, that such breach that action is unintentional and immaterial required in effect)order for the board of directors of Parent to comply with its fiduciary obligations to the Parent’s shareholders under applicable Legal Requirements, (3) at least two (2) Business Days prior to furnishing any such information to, or entering into discussions with, such Person, Parent gives Company written notice of the identity of such Person, the terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) made thereby and of Parent’s intention to the Company the notice required by Section 5.5(b)furnish information to, or enter into discussions with, such Person, and (4) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a receives from such Person an executed confidentiality agreement between Parent and such person on terms no less favorable to Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict between Parent from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to the Company at substantially and containing customary limitations on the same time (to the extent such use and disclosure of all nonpublic written and oral information has not been previously furnished or made available by Parent to the Company); or (B) Parent from taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition Proposal, provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that would constitute a Parent Change in Recommendation in respect of a Parent Acquisition Proposal other than in compliance with Section 5.5(d).to
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Myos Rens Technology Inc.)
