Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) in connection with or in response to a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent, agreement in principle or other agreement providing for any Company Acquisition Transaction (except as contemplated by Section 7.1(j)); provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect), (3) the Company gives to Parent the notice required by Section 5.4(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Company 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 the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(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 the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h))) or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.4, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Company), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (3) the Company gives to Parent the notice required by Section 5.4(b)5.4, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provide such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders 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 Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.4; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.4, none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.4.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Energy Transfer Equity, L.P.), Agreement and Plan of Merger (Southern Union Co), Agreement and Plan of Merger (Southern Union Co)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Companyits 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) Person in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Person with respect to any Company Acquisition Proposal, (iv) except in connection with a Company Change of Recommendation pursuant to Section 6.6(e), approve, endorse or recommend any Company Acquisition Proposal Proposal, or (v) except in connection with a Company Change of Recommendation pursuant to Section 6.6(e), enter into any letter of intent, arrangement, agreement in principle or other agreement providing for understanding relating to any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Transaction; provided, however, that this Section 5.4 6.6 shall not prohibit (A) the Company, or the Board of Directors of the CompanyCompany or any committee thereof, directly or indirectly through any officer, employee or Representative, prior to obtaining the receipt of the Company Stockholder Court Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company 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 Company Superior Offer if (1) the Board of Directors of the Company 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 Company 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 Company Acquisition Proposal did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)6.6, (3) prior thereto the Company gives to has given Parent the notice required by Section 5.4(b6.6(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no and conditions that in the aggregate are not materially less favorable to restrictive than those contained in the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Non-Disclosure Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders 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 Company Acquisition Proposal, providedincluding any so called “stop, howeverlook and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, 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 failure of this Agreement and in no event shall the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable Law; provided that the Company Board of Directors or a committee thereof take any action that would constitute of the Company may make a Company Change of Recommendation only in Recommendation in respect of a Company Acquisition Proposal other than in compliance accordance with Section 5.4(d6.6(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 the Company. (a) The Company agrees that neither it nor any Subsidiary Except as permitted by this Section 5.4 or pursuant to the Additional Transactions, from the date hereof and prior to the earlier of the CompanyEffective Time and the Termination Date, nor any of the Company shall not, and the Company shall cause its Subsidiaries and its and their respective directors, officers, directors or employees, shall, employees 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) encourage, induce or knowingly take any other action designed to facilitate any inquiries regarding or the making, making or submission or announcement of any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries or afford access to the business, properties, books or records of the Company or any of its Subsidiaries, to any person (other than Parent any ETP Party, Merger Sub or Merger Subtheir respective directors, officers, employees, affiliates or Representatives) in connection with or in response to a Company an Acquisition Proposal or any inquiries regarding an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any a person (other than Parent any ETP Party, Merger Sub or Merger Subtheir respective directors, officers, employees, affiliates or Representatives) with respect to any Company an Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction (except as or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by Section 7.1(j)); providedthis Agreement, however(vi) unless the Board of Directors concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to constitute a breach by the Board of Directors of its fiduciary duties under applicable Law, (x) amend or grant any waiver, release or modification under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (y) take any action to make the provisions of Subchapters F, G and H of Chapter 25 of the PBCL inapplicable to any Acquisition Proposal or Acquisition Transaction or (vii) resolve or agree to do any of the foregoing. Notwithstanding the first sentence of this Section 5.4 shall not prohibit (A) 5.4, prior to obtaining the Company Shareholder Approval, the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval, from furnishing nonpublic may (x) furnish non-public information regarding the Company or any of its Subsidiaries to, and afford access to the business, properties, books or entering into or participating in discussions or negotiations withrecords of the Company and any of its Subsidiaries to, any person and (y) engage and participate in discussions and negotiations with any person, in each case in response to an unsolicited, written and bona fide written Company Acquisition Proposal that if the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel, constitutes or is could reasonably likely be expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with was received after the exercise by the Board date of Directors of their duties under applicable Laws, (2) such Company Acquisition Proposal this Agreement and did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (32) the Company gives provides to Parent ETP the notice required by Section 5.4(b)) with respect to such Acquisition Proposal, and (43) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on terms no with provisions that are not less favorable restrictive to the Company such person than the provisions of the Confidentiality Agreement Agreement, a copy of which shall be promptly provided to ETP (provided it being agreed that such confidentiality agreement shall not in any way restrict between the Company from complying with its disclosure obligations under this Agreement, including with respect and such person shall permit such person to such proposalmake any Acquisition Proposal to the Board of Directors of the Company), and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to ETP is made available to the Company to Parent); or (B) maker of the Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, provide or make available such non-public information to ETP substantially concurrent with the time that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant it is provided to such rules has under other person. Nothing in this Section 5.4 shall prohibit the Company, or the Board of Directors, directly or indirectly through any other provision of officer, employee or Representative, from (1) informing any person that the Company is party to this Agreement and informing such person of the restrictions that are set forth in no event shall Section 5.4, or (2) disclosing factual information regarding the business, financial condition or results of operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement/Prospectus or otherwise; provided that, in the case of this clause (2), (x) the Company Board of Directors shall in good faith determine that such information, facts, identity or a committee thereof take any action terms is required to be disclosed under applicable Law or that would failure to make such disclosure is reasonably likely to constitute a breach of its fiduciary duties under applicable Law, and (y) the Company Change complies with the obligations set forth in Recommendation the proviso in respect Section 5.4(h). So long as the Company and its Representatives have otherwise complied with this Section 5.4, none of a the foregoing shall prohibit the Company and its Representatives from contacting any persons or group of persons who has made an Acquisition Proposal other than in compliance with after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to result in, a Superior Offer, and any such actions shall not be a breach of this Section 5.4(d)5.4.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Energy Transfer Partners, L.P.), Agreement and Plan of Merger (Sunoco Inc)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 Company Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the properties, books and records of the Company to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company 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 Company Acquisition Transaction (except as contemplated by Section 7.1(j)); provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company 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 Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect), (3) the Company gives to Parent the notice required by Section 5.4(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially confidentiality as the same time (to the extent such information has not been previously furnished or made available by the Company to Parent)Confidentiality Agreement; or (B) the Company from taking and disclosing to its stockholders 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 Company 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 the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d)Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mirant Corp), Agreement and Plan of Merger (Rri Energy Inc)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary Until the earlier of the CompanyEffective Time and the termination of this Agreement in accordance with Article VIII, nor any of the Company and its Subsidiaries shall not, and the Company shall cause its and their respective officers, directors or employees, shalland employees not to, and that it the Company 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 Company Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the properties, books and records of the Company or any person (other than Parent or Merger Sub) of its Subsidiaries to, any Third Party, in connection with or in response to, or that would be reasonably likely to lead to, a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Third Party with respect to, or that would be reasonably likely to lead to, any Company Acquisition Proposal, or (iv) adopt or approve, endorse or recommend any Company 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 Company Acquisition Transaction (except as contemplated by Section 7.1(j))Proposal; provided, however, that this Section 5.4 6.4(a) shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of received by the Company concludes 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 good faith, after consultation connection with its financial advisors, constitutes or a breach of this Section 6.4 that is reasonably likely to lead to a Company Superior Offer not withdrawn if (but only if): (1) the Board of Directors of the Company concludes determines in good faith, after consultation with its a financial advisor of nationally recognized reputation and outside legal counsel, that such Company Acquisition Proposal constitutes or is reasonably expected to result in a Company Superior Offer, (2) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action with respect to such Company 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 Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)Law, (3) the Company gives to Parent the notice (which notice must state that the Company’s Board of Directors’ has made the determinations contemplated by the foregoing clauses (1) and (2)), required by Section 5.4(b6.4(b), and (4) the Company furnishes any nonpublic non-public information provided and/or provides access to the maker of the Company Acquisition Proposal such Third Party (or its directors, officers, employees or Representatives) only pursuant to a confidentiality agreement between after such Third Party enters into an Acceptable Confidentiality Agreement with the Company and such person on terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent)only pursuant thereto; or (B) the Company 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 stockholders permit the counterparty thereto to make a position contemplated by Rule Company Acquisition Proposal; or (C) the Company from complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company 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 the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(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 the Company. (a) The Company agrees that neither it nor any Subsidiary Except as permitted by this Section 5.4, from the date hereof and prior to the earlier of the CompanyEffective Time and the Termination Date, nor any of the Company shall not, and the Company shall cause its Subsidiaries and its and their respective directors, officers, directors or employees, shall, employees 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) encourage, induce or knowingly take any other action designed to facilitate any inquiries regarding or the making, making or submission or announcement of any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries or afford access to the business, properties, books or records of the Company or any of its Subsidiaries, to any person (other than Parent any ETP Party, HHI, Merger Sub or Merger Subtheir respective directors, officers, employees, affiliates or Representatives) in connection with or in response to a Company an Acquisition Proposal or any inquiries regarding an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any a person (other than Parent any ETP Party, HHI, Merger Sub or Merger Subtheir respective directors, officers, employees, affiliates or Representatives) with respect to any Company an Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction (except as or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by Section 7.1(j)); providedthis Agreement, however, that this Section 5.4 shall not prohibit (Avi) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Company Superior Offer if (1) unless the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under applicable Law, (x) amend or grant any waiver, release or modification under, or fail to enforce, any standstill or similar agreement with respect to such any class of equity securities of the Company or any of its Subsidiaries or (y) take any action to make the provisions of Section 203 of the DGCL inapplicable to any Acquisition Proposal would be reasonably likely or Acquisition Transaction or (vii) resolve or agree to be inconsistent with do any of the exercise by foregoing. Notwithstanding the first sentence of this Section 5.4(a), prior to obtaining the Company Stockholder Approval, the Company, or the Board of Directors of their duties under applicable Lawsthe Company, directly or indirectly through any officer, employee or Representative, may (2x) furnish non-public information regarding the Company or any of its Subsidiaries to, and afford access to the business, properties, books or records of the Company and any of its Subsidiaries to, any person and (y) engage and participate in discussions and negotiations with any person, in each case in response to an unsolicited, written and bona fide Acquisition Proposal if the Board of Directors of the Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Offer if (1) such Company Acquisition Proposal was received after the date of this Agreement and did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (32) the Company gives provides to Parent ETP the notice required by Section 5.4(b)) with respect to such Acquisition Proposal, and (43) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on terms no with provisions that are not less favorable restrictive to the Company such person than the provisions of the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to ETP is made available to the Company to Parent); or (B) maker of the Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, provide or make available such non-public information to ETP substantially concurrent with the time that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant it is provided to such rules has under other person. Nothing in this Section 5.4 shall prohibit the Company, or the Board of Directors of the Company, directly or indirectly through any other provision of officer, employee or Representative, from (1) informing any person that the Company is party to this Agreement and informing such person of the restrictions that are set forth in no event shall Section 5.4, or (2) disclosing factual information regarding the business, financial condition or results of operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement/Prospectus or otherwise; provided that, in the case of this clause (2), (x) the Company Board of Directors shall in good faith determine, after consultation with its outside legal counsel, that such information, facts, identity or a committee thereof take any action terms is required to be disclosed under applicable Law or that would failure to make such disclosure is reasonably likely to constitute a breach of its fiduciary duties under applicable Law, and (y) the Company Change complies with the obligations set forth in Recommendation the proviso in respect Section 5.4(h). So long as the Company and its Representatives have otherwise complied with this Section 5.4, none of a the foregoing shall prohibit the Company and its Representatives from contacting any persons or group of persons who has made an Acquisition Proposal other than in compliance with after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to result in, a Superior Offer, and any such actions shall not be a breach of this Section 5.4(d)5.4.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Energy Transfer Partners, L.P.)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person Person (other than Parent or Merger Sub) in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person Person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal except in connection with a Company Change of Recommendation pursuant to Section 6.4(e) or (v) except in connection with a Company Change of Recommendation pursuant to Section 6.4(e), enter into any letter of intent, agreement in principle arrangement or other agreement providing for understanding relating to any Company Acquisition Transaction (except other than a confidentiality agreement as contemplated by this Section 7.1(j6.4(a)); provided, however, that this Section 5.4 6.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or RepresentativeRepresentative of the Company or any of its Subsidiaries, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is could reasonably likely be expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)6.4, (32) prior thereto the Company gives to has given Parent the notice required by Section 5.4(b), 6.4(b) and (43) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no less favorable and conditions substantially similar to the Company than those contained in the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders 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 Company 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 the Company or the Company Board of Directors or a committee thereof take any action disclosure that would constitute constitutes a Company Change in of Recommendation in shall be subject to the provisions of this Section 6.4 with respect of a Company Acquisition Proposal other than in compliance with Section 5.4(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 the Company. (a) The Except as expressly permitted by this Section 5.3, the Company agrees that neither it nor any Subsidiary shall, shall cause each of the Company, nor any of its Affiliates and its and their respective officers, directors or employees, shalland employees to, and shall direct the agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively, “Representatives”) of the Company or any of its Affiliates to: (A) immediately cease any ongoing solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal, and promptly instruct (to the extent it shall use has contractual authority to do so and has not already done so prior to the date of this Agreement) or otherwise request, any person that has executed a confidentiality or non-disclosure agreement within the 24-month period prior to the date of this Agreement in connection with any actual or potential Company Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its reasonable best efforts to cause its Representatives and their respective Representatives not to (and shall not authorize or permit its and their respective Representatives to)B) until the Effective Time or, if earlier, the Termination Date, not, directly or indirectly: , (i1) solicit, initiate, seek initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) or knowingly take any other action designed to facilitate any inquiries regarding, or the making, submission or announcement making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Acquisition Takeover Proposal, (ii2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any nonpublic other person any non-public information regarding in connection with or for the purpose of encouraging or facilitating, a Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 5.3 and to limit its conversation or other communication exclusively to such referral), or (3) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Takeover Proposal. Except to the extent necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 5.3 (and in such case only in accordance with the terms hereof) or with respect to the Standstill Waivers, (A) the Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, (1) any standstill provision in any agreement to which the Company or any of its Subsidiaries to is a party or (2) any person (other than Parent or Merger Sub) in connection with or in response to a Company Acquisition Proposal, (iii) engage or participate confidentiality provision in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect agreement to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent, agreement in principle or other agreement providing for any Company Acquisition Transaction (except as contemplated by Section 7.1(j)); provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding which the Company or any of its Subsidiaries is a party other than, with respect to this clause (2), any waiver, amendment, modification or permission under a confidentiality provision that does not, and would not be reasonably likely to, facilitate, encourage or entering into or participating relate in discussions or negotiations with, any person in response to an unsolicited, bona fide written Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead way to a Company Superior Offer if (1) the Board of Directors of the Takeover Proposal or a potential Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Takeover Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect), (3) the Company gives to Parent the notice required by Section 5.4(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking shall, and disclosing shall cause its Subsidiaries to, use their respective reasonable best efforts to its stockholders a position contemplated by Rule 14d-9 (1) enforce the confidentiality and Rule 14e-2(astandstill provisions of any such agreement, and (2) promulgated under the Exchange Act with regard immediately take all steps within their power necessary to terminate any waiver that may have been heretofore granted, to any Company Acquisition Proposalperson other than Parent or any of Parent’s Affiliates, 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 the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d)such provisions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (McMoran Exploration Co /De/), Agreement and Plan of Merger (Freeport McMoran Copper & Gold Inc)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h))) or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 5.3 shall not prohibit prohibit: (A) the Company, or ora duly constituted and acting committee of the Board of Directors of the CompanyCompany consisting solely of independent directors (the “Special Committee”), directly or indirectly through any officer, employee or orPermitted Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company and the Special Committee, prior to taking any such particular action, concludes in good faith, after consultation with its itstheir financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.3, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Companythe Special Committee), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes concludesand the Special Committee conclude in good faith, after consultation with its itstheir outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.3, (3) the Company gives to Parent the notice required by this Section 5.4(b)5.3, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provideprovides such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders 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 Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.3; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.3, none of the foregoing shall prohibit the CompanySpecial Committee and its Permitted Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.3.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Williams Companies Inc)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Companyits 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) Person in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Person with respect to any Company Acquisition Proposal, (iv) except in connection with a Company Change of Recommendation pursuant to Section 7.5(e), approve, endorse or recommend any Company Acquisition Proposal Proposal, or (v) except in connection with a Company Change of Recommendation pursuant to Section 7.5(e), enter into any letter of intent, arrangement, agreement in principle or other agreement providing for understanding relating to any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Transaction; provided, however, that this Section 5.4 7.5 shall not prohibit (A) the Company, or the Board of Directors of the CompanyCompany or any committee thereof, directly or indirectly through any officer, employee or Representative, prior to the earlier of the Acceptance Time or the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company 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 Company Superior Offer if (1) the Board of Directors of the Company 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 Company 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 Company Acquisition Proposal did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)7.5, (3) prior thereto the Company gives to has given Parent the notice required by Section 5.4(b7.5(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no and conditions that in the aggregate are not materially less favorable to restrictive than those contained in the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Non-Disclosure Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders 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 Company Acquisition Proposal, providedincluding any so called “stop, howeverlook and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, 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 failure of this Agreement and in no event shall the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable Law; provided that the Company Board of Directors or a committee thereof take any action that would constitute of the Company may make a Company Change of Recommendation only in Recommendation in respect of a Company Acquisition Proposal other than in compliance accordance with Section 5.4(d7.5(e).
Appears in 1 contract
Samples: Transaction Agreement (S1 Corp /De/)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Companyits Subsidiaries, nor any of their respective officers, directors or employees, shallwill, and that it shall use its reasonable best efforts to will cause its and their respective Representatives not to (and shall will not authorize or permit give permission to its and their respective Representatives to), directly or indirectly: 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) Person in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Person with respect to any Company Acquisition Proposal, (iv) except in connection with a Company Change of Recommendation pursuant to Sections 6.5(e) or (f), approve, endorse or recommend any Company Acquisition Proposal Proposal, or (v) except in connection with a Company Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement, agreement in principle or other agreement providing for understanding relating to any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Transaction; provided, however, that this Section 5.4 shall 6.5 will not prohibit (A) the Company, or the Board of Directors of the CompanyCompany Board, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval and the Company Special Required Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Company Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel and a financial advisorsadvisor, constitutes or is could reasonably likely be expected to lead to a Company Superior Offer if (1) the Company Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company 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 Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)6.5, (3) prior thereto the Company gives to has given Parent the notice required by Section 5.4(b6.5(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no and conditions that in the aggregate are not materially less favorable to restrictive than those contained in the Company than the Confidentiality Non-Disclosure Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders 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 Company Acquisition Proposal, providedincluding any so called “stop, howeverlook and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, 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 failure of this Agreement and in no event shall the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable Law; provided that the Company Board of Directors or a committee thereof take any action that would constitute may make a Company Change of Recommendation only in Recommendation in respect of a Company Acquisition Proposal other than in compliance accordance with Section 5.4(dSections 6.5(e) or (f).
Appears in 1 contract
Samples: Transaction Agreement (Dover Downs Gaming & Entertainment Inc)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h))) or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.4, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Company), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (3) the Company gives to Parent the notice required by Section 5.4(b)5.4, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provide such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders 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 Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.4; ( C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.4, none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.4.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Energy Transfer Equity, L.P.)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h)), or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.4, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Company), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (3) the Company gives to Parent the notice required by Section 5.4(b)5.4, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provide such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the - 50 - Exchange Act with regard to any Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.4; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.4, none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.4.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Energy Transfer Equity, L.P.)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction (except as or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by Section 7.1(j))this Agreement or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 5.3 shall not prohibit prohibit: (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.3, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Company), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.3, (3) the Company gives to Parent the notice required by this Section 5.4(b)5.3, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provide such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders 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 Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.3; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.3, none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.3.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Williams Companies Inc)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 Company Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the properties, books and records of the Company to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company 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 Company Acquisition Transaction (except as contemplated by where the Company has validly terminated this Agreement pursuant to Section 7.1(j7.1(k)); provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company 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 Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect), (3) the Company gives to Parent the notice required by Section 5.4(b), and (4) the Company furnishes any nonpublic non-public information provided to, and affords access to the properties, books and records of the Company to, the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), confidentiality and such furnished information is delivered to Parent at substantially use of “Evaluation Material” (as defined in the same time (to Confidentiality Agreement) as the extent such information has not been previously furnished or made available by the Company to Parent)Confidentiality Agreement; or (B) the Company from taking and disclosing to its stockholders 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 Company 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 the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d)Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (KLX Energy Services Holdings, Inc.)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h))) or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 5.3 shall not prohibit prohibit: (A) the Company, or a duly constituted and acting committee of the Board of Directors of the CompanyCompany consisting solely of independent directors (the “Special Committee”), directly or indirectly through any officer, employee or Permitted Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company and the Special Committee, prior to taking any such particular action, concludes in good faith, after consultation with its their financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.3, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to the Special Committee), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes and the Special Committee conclude in good faith, after consultation with its their outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.3, (3) the Company gives to Parent the notice required by this Section 5.4(b)5.3, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provides such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders 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 Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.3; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.3, none of the foregoing shall prohibit the Special Committee and its Permitted Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.3.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Williams Companies Inc)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary Until the earlier of the CompanyEffective Time and the termination of this Agreement in accordance with Article VIII, nor any of the Company and its Subsidiaries shall not, and the Company shall cause its and their respective officers, directors or employees, shalland employees not to, and that it the Company 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 Company Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the properties, books and records of the Company or any person (other than Parent or Merger Sub) of its Subsidiaries to, any Third Party, in connection with or in response to, or that would be reasonably likely to lead to, a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Third Party with respect to, or that would be reasonably likely to lead to, any Company Acquisition Proposal, or (iv) adopt or approve, endorse or recommend any Company 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 Company Acquisition Transaction (except as contemplated by Section 7.1(j))Proposal; provided, however, that this Section 5.4 6.4(a) shall not prohibit (A) the 41 Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of received by the Company concludes 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 good faith, after consultation connection with its financial advisors, constitutes or a breach of this Section 6.4 that is reasonably likely to lead to a Company Superior Offer not withdrawn if (but only if): (1) the Board of Directors of the Company concludes determines in good faith, after consultation with its a financial advisor of nationally recognized reputation and outside legal counsel, that such Company Acquisition Proposal constitutes or is reasonably expected to result in a Company Superior Offer, (2) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action with respect to such Company 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 Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)Law, (3) the Company gives to Parent the notice (which notice must state that the Company’s Board of Directors’ has made the determinations contemplated by the foregoing clauses (1) and (2)), required by Section 5.4(b6.4(b), and (4) the Company furnishes any nonpublic non-public information provided and/or provides access to the maker of the Company Acquisition Proposal such Third Party (or its directors, officers, employees or Representatives) only pursuant to a confidentiality agreement between after such Third Party enters into an Acceptable Confidentiality Agreement with the Company and such person on terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent)only pursuant thereto; or (B) the Company 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 stockholders permit the counterparty thereto to make a position contemplated by Rule Company Acquisition Proposal; or (C) the Company from complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company 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 the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d)Agreement.
Appears in 1 contract
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary Until the earlier of the CompanyEffective Time and the termination of this Agreement in accordance with Article VIII, nor any of the Company and its Subsidiaries shall not, and the Company shall cause its and their respective officers, directors or employees, shalland employees not to, and that it the Company 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 Company Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the properties, books and records of the Company or any person (other than Parent or Merger Sub) of its Subsidiaries to, any Third Party, in connection with or in response to, or that would be reasonably likely to lead to, a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Third Party with respect to, or that would be reasonably likely to lead to, any Company Acquisition Proposal, or (iv) adopt or approve, endorse or recommend any Company 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 Company Acquisition Transaction (except as contemplated by Section 7.1(j))Proposal; provided, however, that this Section 5.4 6.4(a) shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of received by the Company concludes 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 good faith, after consultation connection with its financial advisors, constitutes or a breach of this Section 6.4 that is reasonably likely to lead to a Company Superior Offer not withdrawn if (but only if): (1) the Board of Directors of the Company concludes determines in good faith, after consultation with its a financial advisor of nationally recognized reputation and outside legal counsel, that such Company Acquisition Proposal constitutes or is reasonably expected to result in a Company Superior Offer, (2) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action with respect to such Company 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 Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)Law, (3) the Company gives to Parent the notice (which notice must state that the Company’s Board of Directors’ has made the determinations contemplated by the foregoing clauses (1) and (2)), required by Section 5.4(b6.4(b), and (4) the Company furnishes any nonpublic non-public information provided and/or provides access to the maker of the Company Acquisition Proposal such Third Party (or its directors, officers, employees or Representatives) only pursuant to a confidentiality agreement between after such Third Party enters into an Acceptable Confidentiality Agreement with the Company and such person on terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent)only pursuant thereto; or (B) the Company 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 stockholders permit the counterparty thereto to make a position contemplated by Rule Company Acquisition Proposal; or (C) the Company from complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company 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 the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d)Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fitlife Brands, Inc.)
Non-Solicitation by the Company. (a) The From and after the date of this Agreement until the earlier of the Acceptance Time or the date, if any, on which this Agreement is validly terminated pursuant to Section 9.1, the Company agrees that neither it nor any Subsidiary (including the Company Board of the Company, nor any of their respective officers, directors or employees, shallDirectors) shall not, and that it shall use its reasonable best efforts to cause its each Company Subsidiary and their respective Representatives Representative not to (and shall not authorize or permit its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek initiate or knowingly encourage or facilitate (including by way of furnishing providing non-public information) any inquiry, proposal or knowingly take any other action designed to facilitate any inquiries offer, or the making, submission or announcement of any Company inquiry, proposal or offer which constitutes or would be reasonably expected to lead to an Acquisition Proposal, (ii) participate in any negotiations regarding, or furnish to any nonpublic Person any non-public information regarding relating to the Company or any Company Subsidiary in connection with, an actual or potential Acquisition Proposal, (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, (iv) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, (v) if an Acquisition Proposal that is an exchange or tender offer has been commenced, fail to publicly recommend against any such Acquisition Proposal within ten (10) business days of being requested to do so by Parent, (vi) if an Acquisition Proposal has been publicly disclosed, fail to reaffirm the Company Board Recommendation within ten (10) business days of being requested to do so by Parent, (vii) enter into any merger agreement, acquisition agreement, reorganization agreement, letter of intent or similar agreement or document relating to, or any other agreement or commitment providing for, any Acquisition Proposal, or (viii) resolve or agree to do any of the foregoing (any act described in clauses (iii), (iv), (v), (vi) and (viii) (to the extent related to the foregoing clauses (iii), (iv), (v) and (vi)) above, a “Change of Recommendation”). The Company shall, and shall cause the Company Subsidiaries and its and their respective directors, officers, employees and other Representatives (including the Company Manager) to, immediately cease any and all existing discussions or negotiations with any parties (or provision of any non-public information to any parties) conducted heretofore with respect to any Acquisition Proposal or potential Acquisition Proposal. Promptly after the date hereof, the Company shall request that each Person that has heretofore executed a confidentiality agreement relating to an Acquisition Proposal or a potential Acquisition Proposal promptly destroy or return to the Company all non-public information relating to such Acquisition Proposal or to the Company or its businesses or assets heretofore furnished by the Company or any of its Subsidiaries Representatives to any person (other than Parent such Person or Merger Sub) in connection with or in response to a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent, agreement in principle or other agreement providing for any Company Acquisition Transaction (except as contemplated by Section 7.1(j)); provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding the Company group or any of its Subsidiaries torepresentatives in accordance with the terms of such confidentiality agreement. For purposes of this Section 6.3, the term “Person” means any Person or entering into or participating “group,” as defined in discussions or negotiations with, any person in response to an unsolicited, bona fide written Company Acquisition Proposal that the Board of Directors Section 13(d) of the Company concludes in good faithExchange Act, after consultation with its financial advisorsother than, constitutes or is reasonably likely to lead to a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors Company, Parent or any Parent Subsidiaries or any of their duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect), (3) the Company gives to Parent the notice required by Section 5.4(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Company 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 the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d)Representatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hatteras Financial Corp)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h)), or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.4, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Company), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (3) the Company gives to Parent the notice required by Section 5.4(b)5.4, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provide such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders 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 Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.4; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.4, none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.4.
Appears in 1 contract
Non-Solicitation by the Company. (a) The Until the earlier of the Effective Time or the date this Agreement is terminated in accordance with the provisions of Section 9.01, the Company agrees that neither it nor any Subsidiary of the Companyits Subsidiaries, nor any of their respective officers, directors or employees, employees (acting through the Company Board or the Special Committee or otherwise) 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 initiate 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) Person in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Person with respect to any Company Acquisition Proposal, (iv) except in connection with a Change in Recommendation pursuant to Section 6.02(e), approve, endorse or recommend any Company Acquisition Proposal Proposal, or (v) except in connection with a Change in Recommendation pursuant to Section 6.02(e), enter into any letter of intent, arrangement, agreement in principle or other agreement providing for understanding relating to any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Transaction; provided, however, that this Section 5.4 6.02 shall not prohibit (A) the Company, Special Committee or the Company Board of Directors (acting through and at the direction of the CompanySpecial Committee), directly or indirectly through any officer, employee or Representative, prior to obtaining the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Special Committee or Company Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel and a financial advisorsadvisor, constitutes or is could reasonably likely be expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company Special Committee concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by Special Committee’s or the Board of Directors of their Company Board’s fiduciary duties to the Stockholders under applicable LawsLaw, (2) such Company Acquisition Proposal did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)6.02, (3) prior thereto the Company gives to Parent has given Merger SPV the notice required by Section 5.4(b6.02(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent)conditions; or (B) the Company from taking and disclosing to its stockholders 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 Company Acquisition Proposal, providedincluding any so called “stop, howeverlook and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, 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 failure of this Agreement and in no event shall the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable Law; provided that the Special Committee or the Company Board of Directors or may make a committee thereof take any action that would constitute a Company Change in Recommendation only in respect of a Company Acquisition Proposal other than in compliance accordance with Section 5.4(d6.02(e).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Marlborough Software Development Holdings Inc.)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Companyits 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) Person in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Person with respect to any Company Acquisition Proposal, (iv) except in connection with a Company Change of Recommendation pursuant to Section 6.6(e), approve, endorse or recommend any Company Acquisition Proposal Proposal, or (v) except in connection with a Company Change of Recommendation pursuant to Section 6.6(e), enter into any letter of intent, arrangement, agreement in principle or other agreement providing for understanding relating to any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Transaction; provided, however, that this Section 5.4 6.6 shall not prohibit (A) the Company, or the Board of Directors of the CompanyCompany or any committee thereof, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Shareholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company 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 Company Superior Offer if (1) the Board of Directors of the Company 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 Company 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 Company Acquisition Proposal did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)6.6, (3) prior thereto the Company gives to has given Parent the notice required by Section 5.4(b6.6(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no and conditions that in the aggregate are not materially less favorable to restrictive than those contained in the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Non-Disclosure Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders 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 Company Acquisition Proposal, providedincluding any so called “stop, howeverlook and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, 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 failure of this Agreement and in no event shall the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable Law; provided that the Company Board of Directors or a committee thereof take any action that would constitute of the Company may make a Company Change of Recommendation only in Recommendation in respect of a Company Acquisition Proposal other than in compliance accordance with Section 5.4(d6.6(e).
Appears in 1 contract
