Parent No Solicitation. (a) Solely prior to receipt of the Requisite Parent Vote, during the Interim Period Parent shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to, directly or indirectly (i) solicit, initiate, propose, induce or knowingly take any action to facilitate or encourage the submission of any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter into, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access to the business, properties, assets, books, or records of Parent or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result in, a Parent Takeover Proposal; (iii) amend or grant any waiver or release under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of Parent or its Subsidiaries; (iv) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Parent Takeover Proposal (each, a “Parent Acquisition Agreement”); (v) submit any Parent Takeover Proposal to the vote of the stockholders of Parent; or (vi) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding that notwithstanding anything to the contrary in this Agreement, Parent or any of its Representatives may, in response to an inquiry or proposal from a Third Party, inform such Third Party of the restrictions imposed by the provisions of this Section 7.02. Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Parent Takeover Proposal and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party to any physical or electronic data room relating to any potential Parent Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any breach of the restrictions set forth in this Section 7.02(a) by any Representative of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) shall be deemed to constitute a breach of this Section 7.02(a) by Parent.
Appears in 3 contracts
Samples: Merger Agreement (PRA Health Sciences, Inc.), Merger Agreement (Icon PLC), Merger Agreement (Icon PLC)
Parent No Solicitation. (a) Solely prior to receipt From the date hereof until the earlier of the Requisite Parent VoteEffective Time and the termination of this Agreement pursuant to Section 9.1, during the Interim Period except as otherwise set forth in this Section 7.19, Parent shall not, nor shall cause its it authorize or permit any of the Parent Subsidiaries and its and their officers, employees and directors not to, and shall and Parent shall use reasonable best efforts to cause the other its and its Subsidiaries’ respective Representatives of Parent not to, directly or indirectly (i) solicitinitiate or solicit or knowingly facilitate, initiate, propose, knowingly induce or knowingly take encourage any action to facilitate inquiry or encourage the submission of any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter into, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access to the business, properties, assets, books, or records of Parent or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, a Parent Takeover Proposal; , (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Person any information or data with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any proposal or offer that constitutes, or would reasonably be expected to lead to, any Parent Takeover Proposal, (iii) amend submit to the stockholders of Parent for their approval or grant adoption any waiver Parent Takeover Proposal or release under(iv) agree or publicly announce an intention to take any of the foregoing actions. Except as otherwise set forth in Section 7.19(d), or fail to enforce, any standstill or similar agreement with respect to any class the Board of equity securities Directors of Parent or its Subsidiaries; (iv) any committee thereof shall not approve, declare advisable, adopt or recommend, or publicly propose to approve, declare advisable, adopt or recommend, or allow Parent or any Parent Subsidiary to execute or enter into into, any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, letter of intent, term sheetmerger agreement, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreementagreement or other agreement contemplating or otherwise in connection with, or other Contract relating that is intended to or would reasonably be expected to lead to, any Parent Takeover Proposal (each, other than confidentiality agreements permitted under Section 7.19(b)(i)) (a “Parent Alternative Acquisition Agreement”); (v) submit any Parent Takeover Proposal to the vote of the stockholders of Parent; or (vi) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding that notwithstanding anything to the contrary in this Agreement, Parent or any of its Representatives may, in response to an inquiry or proposal from a Third Party, inform such Third Party of the restrictions imposed by the provisions of this Section 7.02. Parent shall, and Parent shall cause its the Parent Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other its and their respective Representatives of Parent not to, immediately cease and cause to continue, be terminated any and all existing activities, discussions, discussions or negotiations, if any, negotiations with any Third Party Persons or their Representatives conducted prior to the date hereof of this Agreement with respect to any Parent Takeover Proposal and shall use its reasonable best efforts will request the prompt return or destruction of any confidential information previously furnished to cause any such Third Party (or its agents or advisors) Persons in possession connection therewith and immediately terminate the access of non-public information in respect of Parent each such Person and its Subsidiaries that was furnished Representatives to any electronic data room maintained by or on behalf of Parent or its any of the Parent Subsidiaries. Neither Parent nor any of the Parent Subsidiaries shall modify, amend or terminate, or waive, release, fail to return enforce or destroy assign any provisions of, any confidentiality agreement (and confirm destruction ofother than any standstill provision therein) all such information and immediately terminate access by any Third Party to any physical or electronic data room which it is a party relating to any potential Parent Takeover ProposalProposal or any inquiry, offer or proposal in connection therewith and shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement (other than any standstill provision therein). Without limiting the generality of the foregoing, it is understood that any breach violation of the restrictions set forth in this Section 7.02(a) 7.19 by any Representative of Parent (solely for this purpose as if or any of the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) Subsidiaries shall be deemed to constitute be a breach of this Section 7.02(a) 7.19 by Parent.
(b) Notwithstanding the foregoing, prior to receipt of the Parent Stockholder Approval, Parent may, in response to a bona fide written Parent Takeover Proposal that was first received after the date hereof, was unsolicited and did not result from a breach of Section 7.19(a):
(i) furnish information with respect to Parent and the Parent Subsidiaries to the Person making such Parent Takeover Proposal and its Representatives pursuant to and in accordance with a confidentiality agreement containing provisions no less restrictive in any substantive respect than those contained in the Confidentiality Agreement; provided that such confidentiality agreement need not contain a standstill provision; provided, further, that all such information provided to such Person has previously been provided to the Company or is provided to the Company prior to or substantially concurrently with (and in any event on the same calendar day as) the time it is provided to such Person; and
(ii) participate in discussions or negotiations with such Person or its Representatives regarding such Parent Takeover Proposal; provided, in each case, that the Board of Directors of Parent determines in good faith (after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation), that (i) after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation (it being understood that the Parent Financial Advisor is a financial advisor of nationally recognized reputation), such Parent Takeover Proposal is, or would reasonably be expected to lead to, a Parent Superior Proposal and (ii) after consultation with its outside legal counsel, the failure to furnish such information or participate in such discussions or negotiations with respect to such Parent Takeover Proposal would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) As promptly as reasonably practicable after the receipt, directly or indirectly, by Parent of any Parent Takeover Proposal or any proposal, offer or inquiry with respect to, or that would reasonably be expected to lead to, any Parent Takeover Proposal, and in any case within 24 hours after the receipt thereof, Parent shall provide oral and written notice to the Company of (i) such Parent Takeover Proposal, proposal, offer or inquiry, (ii) the identity of the Person making any such Parent Takeover Proposal, proposal, offer or inquiry and (iii) the economic and other material terms and conditions of any such Parent Takeover Proposal, proposal, offer or inquiry (including an unredacted copy of all written materials provided by such Person to Parent in connection with such Parent Takeover Proposal, proposal, offer or inquiry and any amendments or modifications thereto). Parent shall promptly (and in any event within 24 hours) keep the Company reasonably informed of any material developments with respect to any such Parent Takeover Proposal, proposal, offer or inquiry (including any material changes thereto and copies of any additional written materials received by Parent, the Parent Subsidiaries or their respective Representatives from the Person that submitted such Parent Takeover Proposal or such proposal, offer or inquiry or such Person’s Representatives).
(d) Except as provided in this Section 7.19(d), neither the Board of Directors of Parent nor any committee thereof shall, directly or indirectly, effect a Parent Change in Recommendation. Notwithstanding the foregoing, at any time prior to receipt of the Parent Stockholder Approval, the Board of Directors of Parent may, in response to a Parent Superior Proposal (that has not been withdrawn) or a Parent Intervening Event, effect a Parent Change in Recommendation; provided that the Board of Directors of Parent determines in good faith (after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; provided, further, that the Board of Directors of Parent may not effect such a Parent Change in Recommendation unless:
(i) the Board of Directors of Parent shall have first provided four Business Days’ prior written notice to the Company that it is prepared to effect a Parent Change in Recommendation in response to a Parent Superior Proposal or a Parent Intervening Event (it being understood that the delivery of such notice shall not in and of itself constitute a Parent Change in Recommendation), which notice shall (A) in the case of a Parent Superior Proposal, include the material terms and conditions of the Parent Superior Proposal that is the basis of the proposed action of the Board of Directors of Parent (including the identity of the Person making such Parent Superior Proposal and a written summary of any material terms and conditions communicated orally), and shall attach the most current unredacted version of the relevant Parent Alternative Acquisition Agreement (if any) with the Person making such Parent Superior Proposal and unredacted copies of any other documents evidencing or specifying any other terms and conditions of such Parent Takeover Proposal received from, or provided by, the Person making such Parent Superior Proposal and (B) in the case of a Parent Intervening Event, state in reasonable detail the material facts underlying, and the rationale and basis for, the determination that a Parent Intervening Event has occurred (it being understood and agreed that an amendment to the material terms of such Parent Superior Proposal or a material change to the facts and circumstances that are the basis for such Parent Intervening Event shall require an updated notice and a new three Business Day period pursuant to this clause (i) during which period Parent shall be required to comply with this Section 7.19(d) anew with respect to such additional notice);
(ii) during such four Business Day period, Parent and its Representatives, to the extent reasonably requested by the Company, engaged in good faith negotiations with the Company to amend this Agreement in such a manner (A) in the case of a Parent Superior Proposal, that the Parent Takeover Proposal ceases to constitute a Parent Superior Proposal or (B) in the case of a Parent Intervening Event, to obviate the need to effect a Parent Change in Recommendation; and
(iii) after taking into account any revised terms offered in writing by the Company, the Board of Directors of Parent determines in good faith (A) in the case of a Parent Superior Proposal, after consultation with its legal counsel and financial advisor, that such Parent Takeover Proposal continues to constitute a Parent Superior Proposal and (B) in the case of a Parent Superior Proposal or a Parent Intervening Event, after consultation with its outside legal counsel, that the failure to make a Parent Change in Recommendation would continue to be inconsistent with its fiduciary duties under applicable Law.
(e) Nothing contained in this Section 7.19 shall prohibit Parent from complying with Rule 14d-9, Rule 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act in respect of any Parent Takeover Proposal or making any disclosure to the stockholders of Parent if the Board of Directors of Parent determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, however, that any such action taken or statement made that relates to a Parent Takeover Proposal shall not be deemed to be a Parent Change in Recommendation if the Board of Directors of Parent reaffirms the Parent Recommendation in such statement or in connection with such action; provided, further, that neither the Board of Directors of Parent nor any committee thereof shall, except as expressly permitted by Section 7.19(d) (Parent No Solicitation), effect a Parent Change in Recommendation.
(f) For purposes of this Agreement:
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Lantheus Holdings, Inc.), Agreement and Plan of Merger (Progenics Pharmaceuticals Inc), Merger Agreement (Lantheus Holdings, Inc.)
Parent No Solicitation. (a) Solely prior to receipt of the Requisite Except as permitted by this Section 5.5, Parent Vote, during the Interim Period Parent shall notshall, shall cause each of its Subsidiaries affiliates and its and their officers, employees respective officers and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent or any of its affiliates to:
(i) immediately cease any ongoing solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Parent Takeover Proposal and promptly instruct (to the extent it has contractual authority to do so and has not toalready done so prior to the date of this Agreement) or otherwise request, any person that has entered into a confidentiality or non-disclosure agreement that has not been terminated or expired and was executed within the 12-month period prior to the date of this Agreement in connection with any actual or potential Parent Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its Representatives;
(ii) until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, not, directly or indirectly indirectly:
(iA) solicit, initiate, propose, induce initiate or knowingly take any action to facilitate or knowingly encourage the submission (including by way of any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter into, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any furnishing non-public information relating to Parent or its Subsidiaries to, afford access to the business, properties, assets, booksinformation) any inquiries regarding, or records of Parent or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, a Parent Takeover Proposal; ,
(iiiB) amend engage in, continue or grant otherwise participate in any waiver discussions or release undernegotiations regarding, or fail furnish to enforceany other person any non-public information regarding Parent in connection with or for the purpose of encouraging or facilitating, a Parent Takeover Proposal, or
(C) approve, recommend or enter into, or propose to approve, recommend or enter into, any standstill letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral) with respect to any class of equity securities of Parent or its Subsidiaries; (iv) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any a Parent Takeover Proposal (each, a “other than an Acceptable Parent Acquisition Agreement”Confidentiality Agreement entered into in accordance with Section 5.5(b)); and
(viii) submit any Parent Takeover Proposal Except to the vote extent necessary to take any actions that Parent or any third party would otherwise be permitted to take pursuant to this Section 5.5 or except to the extent that the Parent Board of Directors concludes, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the stockholders Parent Board of Parent; Directors under applicable Law, (A) Parent and its Subsidiaries shall not release any third party from, or (vi) approvewaive, authorizeamend or modify any provision of, agree or publicly announce an intention grant permission under, any standstill provision in any agreement to do any of the foregoing; provided, that notwithstanding that notwithstanding anything to the contrary in this Agreement, which Parent or any of its Representatives maySubsidiaries is a party, in response to an inquiry or proposal from a Third Partyunder the Support Agreements and, inform such Third Party of if applicable, the restrictions imposed by the provisions of this Section 7.02. Voting Agreement and (B) Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts enforce the standstill provisions of any such agreement.
(b) Notwithstanding anything to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiationscontrary contained in Section 5.5(a), if any, with at any Third Party conducted time from and after the date of this Agreement and prior to obtaining the date hereof Parent Stockholder Approval, Parent, directly or indirectly, receives a bona fide, unsolicited written Parent Takeover Proposal from any person that did not result from Parent’s, its affiliates’ or Parent’s or its affiliates’ Representatives’ material breach of this Section 5.5 and if the Parent Board of Directors determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Parent Takeover Proposal constitutes or could reasonably be expected to lead to a Parent Superior Proposal, then Parent may, directly or indirectly:
(i) furnish, pursuant to an Acceptable Parent Confidentiality Agreement, information (including non-public information) with respect to any Parent and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of Parent and its Subsidiaries, to the person who has made such Parent Takeover Proposal and its Representatives and potential sources of financing; provided, that Parent shall use its reasonable best efforts substantially concurrently with the delivery to cause such person provide to the Company any such Third Party (or its agents or advisors) in possession of non-public information in respect concerning Parent or any of Parent and its Subsidiaries that was furnished is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to the Company; and
(ii) engage in or otherwise participate in discussions or negotiations with the person making such Parent Takeover Proposal and its Representatives and potential sources of financing regarding such Parent Takeover Proposal, and solicit (it being understood that no solicitation under this clause (ii) shall result in any proposal or offer being deemed to be “unsolicited”), initiate, facilitate, or encourage inquiries or the making of proposals or offers from such person. “Acceptable Parent Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less favorable to Parent than those applicable to the Company that are contained in the Confidentiality Agreement (including standstill restrictions), provided that such confidentiality agreement shall not prohibit compliance by Parent with any of the provisions of this Section 5.5. Nothing in this Section 5.5 shall prohibit Parent or on behalf the Parent Board of Directors, directly or indirectly through any officer, employee or Representative, from (1) informing any person that Parent is party to this Agreement and informing such person of the restrictions that are set forth in this Section 5.5 or (2) disclosing factual information regarding the business, financial condition or results of operations of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party to any physical or electronic data room relating to any potential the fact that a Parent Takeover Proposal. Without limiting Proposal has been made, the generality identity of the foregoingparty making such proposal or the material terms of such proposal in the Proxy Statement/Prospectus or otherwise; provided that, it is understood that any breach of in the restrictions set forth in this Section 7.02(a) by any Representative of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) shall be deemed to constitute a breach case of this Section 7.02(a) by Parentclause (2), Parent shall in good faith determine that such information, facts, identity or terms are 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.
Appears in 2 contracts
Samples: Merger Agreement (Carrizo Oil & Gas Inc), Merger Agreement (Callon Petroleum Co)
Parent No Solicitation. (a) Solely prior to receipt of the Requisite Parent Vote, during the Interim Period Parent shall will not, shall and Parent will cause each of its Subsidiaries and its and their officers, employees and directors respective Representatives not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not toexcept as expressly permitted by this Section 4.3 or Section 4.6, directly or indirectly indirectly:
(i) solicit, initiate, propose, induce knowingly encourage or knowingly take facilitate any action to facilitate inquiries regarding, or encourage the submission of or announcement by any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter intoPerson of, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access to the business, properties, assets, books, or records of Parent or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, any Parent Acquisition Proposal;
(ii) furnish any information regarding Parent or any Subsidiary of Parent (other than to the Company and its Subsidiaries), or afford access to Parent’s or its Subsidiaries’ Representatives, books, records or property, in each case, in connection with, for the purpose of soliciting, initiating, encouraging or facilitating, or in response to, any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Parent Takeover Acquisition Proposal; ;
(iii) amend engage in, enter into, continue or grant otherwise participate in any waiver discussions or release under, or fail to enforce, negotiations with any standstill or similar agreement Person with respect to any class of equity securities of Parent Acquisition Proposal or its Subsidiariesany inquiry, proposal or offer that would reasonably be expected to lead to any Parent Acquisition Proposal; or
(iv) approve, adopt, recommend, agree to or enter into into, or propose to approve, adopt, recommend, agree to or enter into, any agreement in principle, memorandum of understanding, letter of intent, term sheetmemorandum of understanding or similar document, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreementcommitment, or other Contract relating agreement in principle with respect to any Parent Takeover Proposal (each, a “Parent Acquisition Agreement”)Proposal; or
(v) submit any Parent Takeover Proposal to the vote of the stockholders of Parent; resolve or (vi) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding that however, that, notwithstanding anything to the contrary contained in this Agreement, prior to obtaining the Required Parent Stockholder Vote, Parent and its Representatives may engage or otherwise participate in discussions or negotiations with, and provide information to, any Person (or its Representatives) that has made a bona fide written Parent Acquisition Proposal after the date hereof that did not result from any breach of this Section 4.3(a) or Section 4.3(c) by Parent, any of its Subsidiaries or any of its or their respective Representatives mayif: (A) prior to taking any such action, the Parent Board determines in good faith, after consultation with Parent’s outside legal counsel and its financial advisor, that such Parent Acquisition Proposal either constitutes a Parent Superior Proposal or would reasonably be expected to lead to a Parent Superior Proposal and that failure to engage in such discussions or negotiations, or provide such information, would reasonably be expected to be inconsistent with the Parent Board’s fiduciary duties to Parent and its stockholders under applicable Legal Requirements; and (B) prior to providing any information regarding Parent or any Subsidiary of Parent to such third party in response to such Parent Acquisition Proposal, Parent receives from such third party (or there is then in effect with such party) an executed confidentiality agreement that contains nondisclosure provisions that are at least as restrictive of such third party as the Non-Disclosure Agreement and that does not prohibit compliance by Parent with this Section 4.3. Prior to or substantially concurrently with providing any non-public information to such third party, Parent shall make such non-public information available to the Company (to the extent such non-public information has not been previously made available by Parent to the Company). Parent shall promptly (and in any event within 24 hours) inform the Company if Parent furnishes non-public information and/or enters into discussions or negotiations as provided for in this Section 4.3(a) and will keep the Company reasonably informed in writing, on a current basis (and, in any event, within 24 hours), of the status and terms of any Parent Acquisition Proposal (including any material changes to the terms thereof) and the status of any discussions and negotiations with respect thereto.
(b) If Parent receives a Parent Acquisition Proposal or any inquiry or proposal from request for information with respect to a Third PartyParent Acquisition Proposal or that is reasonably likely to lead to a Parent Acquisition Proposal, inform then Parent shall promptly (and in no event later than 24 hours after its receipt of such Third Party Parent Acquisition Proposal or request) notify the Company in writing of such Parent Acquisition Proposal or request (which notification shall include the identity of the restrictions imposed by Person making or submitting such request or Parent Acquisition Proposal and an unredacted copy of any such written request or proposal (or, if not in writing, the provisions material terms and conditions thereof)), together with copies of any proposed transaction agreements, and Parent shall thereafter keep the Company reasonably informed in writing, on a current basis (and, in any event, within 24 hours), of the status of such Parent Acquisition Proposal or request, including informing the Company of any material change to the terms of such Parent Acquisition Proposal, and the status of any negotiations, including any change in its intentions as previously notified.
(c) Promptly following the execution and delivery of this Section 7.02. Agreement, Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause each of its Subsidiaries and its and their officers, employees and directors not respective Representatives to, immediately cease and shall and shall use reasonable best efforts cause to cause the other Representatives of Parent not to continuebe terminated any existing solicitation of, or discussions or negotiations with, any Person (other than the Company and all existing activities, discussions, or negotiations, if any, with its Representatives) relating to any Third Party conducted Parent Acquisition Proposal made prior to the date hereof with respect to and any Parent Takeover Proposal and shall use its reasonable best efforts to cause access any such Third Party (or its agents or advisors) in possession of non-public information in respect of Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party Persons may have to any physical or electronic data room relating to any potential Parent Takeover Acquisition Proposal. Without limiting the generality Parent shall not, and shall cause its Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which Parent or any of the foregoing, it its Affiliates is understood that any breach a party.
(d) Any violation of the restrictions set forth contained in this Section 7.02(a) 4.3 by any Representative of Parent’s Subsidiaries or any Representatives of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) or any of its Subsidiaries shall be deemed to constitute be a breach of this Section 7.02(a) 4.3 by Parent.
Appears in 2 contracts
Samples: Merger Agreement (Advanced Micro Devices Inc), Merger Agreement (Xilinx Inc)
Parent No Solicitation. (a) Solely prior to receipt of the Requisite Except as expressly permitted by this Section 5.5, Parent Vote, during the Interim Period Parent shall not, shall cause its Subsidiaries and its and their officers, employees and directors not toshall, and shall and shall use reasonable best efforts to cause the other Representatives each of Parent not to, directly or indirectly (i) solicit, initiate, propose, induce or knowingly take any action to facilitate or encourage the submission of any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter into, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access and instruct its and their respective Representatives to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Parent Takeover Proposal and (ii) from and after the businessdate of this Agreement until the Effective Time or, propertiesif earlier, assetsthe termination of this Agreement in accordance with Article VII, booksnot, directly or records of Parent or its Subsidiaries toindirectly, (A) solicit, initiate or knowingly assist, knowingly facilitate, facilitate or knowingly encourage any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, a Parent Takeover Proposal; , (iiiB) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any other person any non-public information in connection with or for the purpose of encouraging or facilitating, a Parent Takeover Proposal or (C) 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 providing for a Parent Takeover Proposal.
(b) Except as expressly provided by this Agreement, Parent shall not take any action to exempt any person from the restrictions on “business combinations” contained in Subchapter F of Chapter 25 of Pennsylvania Law or the Parent Organizational Documents or otherwise cause such restrictions not to apply. Except (i) as necessary to take any actions that Parent or any third party would otherwise be permitted to take pursuant to this Section 5.5 (and in such case only in accordance with the terms hereof) or (ii) if the Parent Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that any such action or forbearance would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (A) Parent and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under any (1) standstill provision in any agreement to which Parent or any of its Subsidiaries is a party or (2) confidentiality provision in any agreement to which Parent or any of its Subsidiaries is a party (excluding any waiver under a confidentiality provision that does not, and would not reasonably be likely to, facilitate or release underencourage a Parent Takeover Proposal) and (B) Parent shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement.
(c) Notwithstanding anything to the contrary contained in this Section 5.5, if at any time from and after the date of this Agreement and prior to obtaining the Parent Stockholder Approval, Parent, directly or fail indirectly receives a bona fide, unsolicited written Parent Takeover Proposal from any person that did not result from a material breach (or a deemed material breach) of this Section 5.5 and if the Parent Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Parent Takeover Proposal constitutes or would reasonably be expected to enforcelead to a Parent Superior Proposal, any standstill and failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then Parent and its Representatives may, directly or similar agreement indirectly, (i) furnish, pursuant to a Parent Acceptable Confidentiality Agreement, information (including non-public information) with respect to any class of equity securities Parent and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of Parent and its Subsidiaries, to the person that has made such Parent Takeover Proposal and its Representatives and potential sources of funding; provided that Parent shall substantially concurrently with the delivery to such person provide to the Company any non-public information concerning Parent or any of its Subsidiaries that is provided or made available to such person or its Subsidiaries; Representatives unless such non-public information has been previously provided or made available to the Company and (ivii) enter into any agreement engage in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any otherwise participate in discussions or negotiations with the person making such Parent Takeover Proposal (eachincluding as a part thereof, a making counterproposals) and its Representatives and potential sources of financing regarding such Parent Takeover Proposal. “Parent Acquisition Acceptable Confidentiality Agreement”); (v) submit ” means any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to Parent Takeover Proposal than those applicable to the vote of Company that are contained in the stockholders of ParentConfidentiality Agreement; or (vi) approve, authorize, agree or publicly announce an intention to do provided that such confidentiality agreement shall not prohibit compliance by Parent with any of the foregoing; provided, that notwithstanding that notwithstanding provisions of this Section 5.5. Notwithstanding anything to the contrary in this Agreement, (A) Parent may grant a waiver, amendment or release under any of its Representatives mayconfidentiality agreement, in response to an inquiry standstill agreement or proposal from a Third Party, inform such Third Party of the restrictions imposed by the provisions of this Section 7.02. Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiations, if any, with any Third Party conducted prior similar agreement to the date hereof with respect extent necessary to any allow a Parent Takeover Proposal and shall use its reasonable best efforts to cause any such Third Party be made to Parent or the Parent Board (or its agents or advisorsany committee thereof), and (B) in possession the Parties agree that, by execution of non-public information in respect of this Agreement, Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party to any physical or electronic data room relating to any potential Parent Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any breach of the restrictions set forth in this Section 7.02(a) by any Representative of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) shall be deemed to constitute a breach have waived, as of immediately prior to the execution and delivery of this Section 7.02(a) by ParentAgreement, any provision in any such agreement to the extent necessary to allow the applicable counterparty to convey a Parent Takeover Proposal to Parent or the Parent Board (or any committee thereof).
Appears in 2 contracts
Samples: Merger Agreement (Ii-Vi Inc), Merger Agreement (Coherent Inc)
Parent No Solicitation. (a) Solely prior to receipt of the Requisite Except as expressly permitted by this Section 5.5, Parent Vote, during the Interim Period Parent shall not, shall cause its Subsidiaries and its and their officers, employees and directors not toshall, and shall and shall use reasonable best efforts to cause the other Representatives each of Parent not to, directly or indirectly (i) solicit, initiate, propose, induce or knowingly take any action to facilitate or encourage the submission of any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter into, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access and instruct its and their respective Representatives to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Parent Takeover Proposal and (ii) from and after the businessOriginal Agreement Date until the Effective Time or, propertiesif earlier, assetsthe termination of this Agreement in accordance with Article VII, booksnot, directly or records of Parent or its Subsidiaries toindirectly, (A) solicit, initiate or knowingly assist, knowingly facilitate, facilitate or knowingly encourage any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, a Parent Takeover Proposal; , (iiiB) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any other person any non-public information in connection with or for the purpose of encouraging or facilitating, a Parent Takeover Proposal or (C) 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 providing for a Parent Takeover Proposal.
(b) Except as expressly provided by this Agreement, Parent shall not take any action to exempt any person from the restrictions on “business combinations” contained in DGCL 203 or the Parent Organizational Documents or otherwise cause such restrictions not to apply. Except (i) as necessary to take any actions that Parent or any third party would otherwise be permitted to take pursuant to this Section 5.5 (and in such case only in accordance with the terms hereof) or (ii) if the Parent Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that any such action or forbearance would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (A) Parent and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under any (1) standstill provision in any agreement to which Parent or any of its Subsidiaries is a party or (2) confidentiality provision in any agreement to which Parent or any of its Subsidiaries is a party (excluding any waiver under a confidentiality provision that does not, and would not reasonably be likely to, facilitate or release underencourage a Parent Takeover Proposal) and (B) Parent shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement.
(c) Notwithstanding anything to the contrary contained in this Section 5.5, if at any time from and after the Original Agreement Date and prior to obtaining the Parent Stockholder Approval, Parent, directly or fail indirectly receives a bona fide, unsolicited written Parent Takeover Proposal from any person that did not result from a material breach (or a deemed material breach) of this Section 5.5 (including, for the avoidance of doubt, a material breach (or deemed material breach) of Section 5.5 of the Original Agreement) and if the Parent Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Parent Takeover Proposal constitutes or would reasonably be expected to enforcelead to a Parent Superior Proposal, any standstill and failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then Parent and its Representatives may, directly or similar agreement indirectly, (i) furnish, pursuant to a Parent Acceptable Confidentiality Agreement, information (including non-public information) with respect to any class of equity securities Parent and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of Parent and its Subsidiaries, to the person that has made such Parent Takeover Proposal and its Representatives and potential sources of funding; provided that Parent shall substantially concurrently with the delivery to such person provide to the Company any non-public information concerning Parent or any of its Subsidiaries that is provided or made available to such person or its Subsidiaries; Representatives unless such non-public information has been previously provided or made available to the Company and (ivii) enter into any agreement engage in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any otherwise participate in discussions or negotiations with the person making such Parent Takeover Proposal (eachincluding as a part thereof, a making counterproposals) and its Representatives and potential sources of financing regarding such Parent Takeover Proposal. “Parent Acquisition Acceptable Confidentiality Agreement”); (v) submit ” means any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to Parent Takeover Proposal than those applicable to the vote of Company that are contained in the stockholders of ParentConfidentiality Agreement; or (vi) approve, authorize, agree or publicly announce an intention to do provided that such confidentiality agreement shall not prohibit compliance by Parent with any of the foregoing; provided, that notwithstanding that notwithstanding provisions of this Section 5.5. Notwithstanding anything to the contrary in this Agreement, (A) Parent may grant a waiver, amendment or release under any of its Representatives mayconfidentiality agreement, in response to an inquiry standstill agreement or proposal from a Third Party, inform such Third Party of the restrictions imposed by the provisions of this Section 7.02. Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiations, if any, with any Third Party conducted prior similar agreement to the date hereof with respect extent necessary to any allow a Parent Takeover Proposal and shall use its reasonable best efforts to cause any such Third Party be made to Parent or the Parent Board (or its agents or advisorsany committee thereof), and (B) in possession the Parties agree that, by execution of non-public information in respect of this Agreement, Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party to any physical or electronic data room relating to any potential Parent Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any breach of the restrictions set forth in this Section 7.02(a) by any Representative of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) shall be deemed to constitute a breach have waived, as of immediately prior to the execution and delivery of this Section 7.02(a) by ParentAgreement, any provision in any such agreement to the extent necessary to allow the applicable counterparty to convey a Parent Takeover Proposal to Parent or the Parent Board (or any committee thereof).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Coherent Inc), Agreement and Plan of Merger (Lumentum Holdings Inc.)
Parent No Solicitation. (a) Solely prior to receipt of the Requisite Parent Vote, during the Interim Period Parent shall will not, shall and Parent will cause each of its Subsidiaries and its and their officersrespective directors, employees officers and directors not toemployees, and shall and shall will use its reasonable best efforts to cause the its other Representatives of Parent not to, except as expressly permitted by this Section 4.3 or Section 4.6, directly or indirectly indirectly:
(i) solicit, initiate, propose, induce knowingly encourage or knowingly take facilitate any action to facilitate inquiries regarding, or encourage the submission of or announcement by any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter intoPerson of, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access to the business, properties, assets, books, or records of Parent or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, any Parent Acquisition Proposal;
(ii) furnish any information regarding Parent or any Subsidiary of Parent in connection with, for the purpose of soliciting, initiating, encouraging or facilitating, or in response to, a Parent Takeover Acquisition Proposal; ;
(iii) engage in or otherwise participate in any discussions or negotiations with any Person with respect to any Parent Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Parent Acquisition Proposal; or
(iv) approve, adopt, recommend or enter into, or propose to approve, adopt, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle with respect to any Parent Acquisition Proposal; provided, however, that, notwithstanding anything to the contrary contained in this Agreement, prior to obtaining the Required Parent Shareholder Vote, Parent and its Representatives may engage or otherwise participate in discussions or negotiations with, and provide information to, any Person (or its Representatives) that has made a bona fide written Parent Acquisition Proposal that did not result from any breach of this Section 4.3(a) by Parent, any of its Subsidiaries or any of its or their respective Representatives if: (A) prior to taking any such action, the Parent Board determines in good faith, after consultation with Parent’s outside legal counsel and its financial advisor, that such Parent Acquisition Proposal either constitutes a Parent Superior Proposal or could reasonably be expected to lead to a Parent Superior Proposal; and (B) prior to providing any information regarding Parent or any Subsidiary of Parent to such third party in response to such Parent Acquisition Proposal, Parent receives from such third party (or there is then in effect with such party) an executed confidentiality agreement that contains nondisclosure provisions that are at least as restrictive of such third party as the Confidentiality Agreement and that does not prohibit compliance by Parent with this Section 4.3. Prior to or substantially concurrently with providing any non-public information to such third party, Parent shall make such non-public information available to the Company (to the extent such non-public information has not been previously made available by Parent to the Company). Parent shall promptly (and in any event within 24 hours) inform the Company if Parent furnishes non-public information and/or enters into discussions or negotiations as provided for in this Section 4.3(a) and will keep the Company reasonably informed, on a current basis, of the status and terms of any Parent Acquisition Proposal (including any material changes to the terms thereof) and the status of any discussions and negotiations with respect thereto.
(b) If Parent receives a Parent Acquisition Proposal or any inquiry or request for information with respect to a Parent Acquisition Proposal or that is reasonably likely to lead to a Parent Acquisition Proposal, then Parent shall promptly (and in no event later than 48 hours after its receipt of such Parent Acquisition Proposal or request) notify the Company in writing of such Parent Acquisition Proposal or request (which notification shall include the identity of the Person making or submitting such request or Parent Acquisition Proposal and a copy of any such written request or proposal (or, if not in writing, the material terms and conditions thereof)), and Parent shall thereafter keep the Company reasonably informed, on a current basis (and, in any event, within 24 hours), of the status of such Parent Acquisition Proposal or request, including informing the Company of any material change to the terms of such Parent Acquisition Proposal, and the status of any negotiations, including any change in its intentions as previously notified.
(c) Promptly following the execution and delivery of this Agreement, Parent shall, and shall cause each of its Affiliates and its and their respective directors, officers and employees, and shall use reasonable best efforts to cause its other Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person (other than the Company and its Representatives) relating to any Parent Acquisition Proposal made prior to the date hereof. Parent shall not, and shall cause its Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant any waiver or release permission under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of Parent or its Subsidiaries; (iv) enter into provision in any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Parent Takeover Proposal (each, a “Parent Acquisition Agreement”); (v) submit any Parent Takeover Proposal to the vote of the stockholders of Parent; or (vi) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding that notwithstanding anything to the contrary in this Agreement, which Parent or any of its Representatives may, in response to an inquiry or proposal from Affiliates is a Third Party, inform such Third Party party.
(d) Any violation of the restrictions imposed by the provisions of this Section 7.02. Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Parent Takeover Proposal and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party to any physical or electronic data room relating to any potential Parent Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any breach of the restrictions set forth contained in this Section 7.02(a) 4.3 by any Representative of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) Parent’s Representatives shall be deemed to constitute be a breach of this Section 7.02(a) 4.3 by Parent.
Appears in 2 contracts
Samples: Merger Agreement (Analog Devices Inc), Merger Agreement (Maxim Integrated Products Inc)
Parent No Solicitation. (a) Solely prior to receipt Except as permitted by this Section 5.04, from the date hereof until the Effective Time, or, if earlier, the termination of the Requisite Parent Votethis Agreement in accordance with its terms, during the Interim Period Parent shall not, nor shall cause its Subsidiaries and its and their officers, employees and directors not it authorize or permit any Parent Subsidiary to, and nor shall and shall use reasonable best efforts to cause the other it authorize any Representatives of Parent not or any Parent Subsidiary to, directly or indirectly indirectly, (i) solicit, initiate, propose, induce knowingly encourage or knowingly take any other action to knowingly facilitate any inquiry, discussion, offer or encourage the submission of any Parent Takeover Proposal request that constitutes, or the making of any proposal that would could reasonably be expected to lead to, a Parent Takeover Proposal, (ii) enter into any agreement, letter of intent, memorandum of understanding or other similar instrument with respect to any Parent Takeover Proposal; Proposal (iiother than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.04) or (iii) enter into, continue, conduct, engage or otherwise participate in in any discussions or negotiations withregarding, disclose or furnish to any Person any non-public information relating to Parent or its Subsidiaries to, afford access to the business, properties, assets, books, or records of Parent or its Subsidiaries with respect to, or knowingly assistfor the purpose of encouraging or facilitating, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result in, a Parent Takeover Proposal; (iii) amend or grant any waiver or release under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of Parent or its Subsidiaries; (iv) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Parent Takeover Proposal (each, a “Parent Acquisition Agreement”); (v) submit any Parent Takeover Proposal to the vote of the stockholders of Parent; or (vi) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding that notwithstanding anything to the contrary in this Agreement, Parent or any of its Representatives may, in response to an inquiry or proposal from a Third Party, inform such Third Party of the restrictions imposed by the provisions of this Section 7.02. Parent shall, shall cause the Parent Subsidiaries, and shall cause direct its Subsidiaries to Representatives to, immediately cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and terminated all existing activities, discussions, or negotiations, if any, discussions and negotiations with any Third Party Person conducted prior to the date hereof theretofore with respect to any Parent Takeover Proposal and shall use its reasonable best efforts to cause request that any such Third Party Person promptly return and/or destroy all confidential information concerning Parent and the Parent’s Subsidiaries to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, prior to obtaining Parent Stockholder Approval, Parent and its Representatives may, in response to each (if any) Parent Takeover Proposal made after the date hereof that does not result from a material breach of this Section 5.04, (y) contact the Person making such Parent Takeover Proposal solely to clarify the terms and conditions thereof and (z) if the Parent Board determines in good faith, after consultation with outside legal counsel and independent financial advisors, that such Parent Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Parent Proposal, (1) provide access to or furnish information with respect to Parent and the Parent Subsidiaries to the Person making such Parent Takeover Proposal and its agents Representatives pursuant to an Acceptable Confidentiality Agreement; provided, that Parent will prior to or advisors) in possession of concurrently with the time such information is provided to such Person provide Parent with all non-public information in respect of regarding Parent and its Subsidiaries that was furnished by or on behalf of has not previously been provided to Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party that is provided to any physical or electronic data room relating to any potential Person making such Parent Takeover Proposal. Without limiting the generality of the foregoing; and (2) conduct, it is understood that any breach of the restrictions set forth engage or participate in this Section 7.02(a) by any Representative of discussions or negotiations with such Person and its Representatives making such Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) shall be deemed to constitute a breach of this Section 7.02(a) by ParentTakeover Proposal.
Appears in 2 contracts
Samples: Merger Agreement (Independence Realty Trust, Inc.), Merger Agreement (Steadfast Apartment REIT, Inc.)
Parent No Solicitation. (a) Solely prior to receipt of the Requisite Parent Vote, during the Interim Period Parent shall will not, shall and will cause each of its Subsidiaries and its and their officersrespective directors, officers and employees and directors not to, and shall instruct and shall use its reasonable best efforts to cause the its other Representatives of Parent not to, directly or indirectly indirectly:
(i) make, solicit, initiate, propose, induce knowingly encourage or knowingly take any action to facilitate or encourage cooperate with any inquiries regarding, or the submission of or announcement by any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter intoPerson of, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access to the business, properties, assets, books, or records of Parent or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, any Parent Acquisition Proposal;
(ii) furnish any information regarding Parent or any Subsidiary of Parent in connection with, for the purpose of making, soliciting, initiating, encouraging or facilitating, or in response to, a Parent Takeover Acquisition Proposal; ;
(iii) engage in or otherwise participate in any discussions or negotiations with any Person with respect to any Parent Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Parent Acquisition Proposal; or
(iv) approve, adopt, endorse, recommend or enter into, or propose to approve, adopt, endorse, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle with respect to any Parent Acquisition Proposal.
(b) If Parent receives a Parent Acquisition Proposal or any inquiry or request for information with respect to a Parent Acquisition Proposal or that is reasonably likely to lead to a Parent Acquisition Proposal, then Parent shall promptly (and in no event later than forty eight (48) hours after its receipt of such Parent Acquisition Proposal or request) notify the Company in writing of such Parent Acquisition Proposal or request (which notification shall, unless expressly prohibited by a confidentiality agreement in effect as of the date hereof, include the identity of the Person making or submitting such request or Parent Acquisition Proposal and a copy of any such written request or proposal (or, if not in writing, the material terms and conditions thereof)).
(c) Promptly following the execution and delivery of this Agreement, Parent shall, and shall instruct and cause each of its Affiliates and its and their respective directors, officers and employees, and shall use reasonable best efforts to cause its other Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person (other than the Company and its Representatives) relating to any Parent Acquisition Proposal made on or prior to the date hereof. Parent shall not, and shall cause its Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant any waiver or release permission under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of Parent or its Subsidiaries; (iv) enter into provision in any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Parent Takeover Proposal (each, a “Parent Acquisition Agreement”); (v) submit any Parent Takeover Proposal to the vote of the stockholders of Parent; or (vi) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding that notwithstanding anything to the contrary in this Agreement, which Parent or any of its Representatives may, in response to an inquiry or proposal from Affiliates is a Third Party, inform such Third Party party.
(d) Any violation of the restrictions imposed by the provisions of this Section 7.02. Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Parent Takeover Proposal and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party to any physical or electronic data room relating to any potential Parent Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any breach of the restrictions set forth contained in this Section 7.02(a) 7.2 by any Representative of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) Parent’s Representatives shall be deemed to constitute be a breach of this Section 7.02(a) 7.2 by Parent.
Appears in 1 contract
Parent No Solicitation. (a) Solely Prior to the approval of the Parent Common Stock Issuance by the Required Parent Stockholder Vote, Parent shall not directly or indirectly, shall ensure that its Subsidiaries do not, and use reasonable best efforts to ensure that Parent’s and its Subsidiaries’ respective Representatives do not directly or indirectly: (i) solicit, initiate, knowingly encourage, assist, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry (including by approving any transaction, or approving any Person (other than the Company and its Affiliates) becoming an “interested stockholder” for purposes of Section 203 of the DGCL) or take any action that reasonably would be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) furnish or otherwise provide access to any non-public information regarding Parent or any of its Subsidiaries to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) enter into, continue or otherwise engage in discussions or negotiations with, or cooperate with, any Person with respect to any Acquisition Proposal or Acquisition Inquiry (other than to state the terms of this provision prohibit such discussions); (iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into any letter of intent, memorandum of understanding, agreement in principle or similar document or any Contract constituting or relating directly or indirectly to, or that contemplates or is intended or reasonably would be expected to result directly or indirectly in, an Acquisition Transaction.
(b) Notwithstanding anything to the contrary contained in Section 4.5(a) prior to the approval of the Parent Common Stock Issuance by the Required Parent Stockholder Vote, Parent may furnish non-public information regarding Parent and its Subsidiaries to, may enter into discussions or negotiations with and may make contact in order to ascertain facts or clarify terms with, any Person in response to an unsolicited, bona fide, written Acquisition Proposal that is submitted to Parent after the date of this Agreement by such Person (and not withdrawn), in each case if: (i) neither Parent nor any of its Subsidiaries or any of their respective Representatives shall have breached any of the provisions set forth in this Section 4.5 or in Section 5.3 in relation to such Acquisition Proposal or Acquisition Inquiry; (ii) Parent’s board of directors determines in good faith, after having taken into account the advice of an independent financial advisor and Parent’s outside legal counsel, that such Acquisition Proposal constitutes or reasonably could be expected to result in a Parent Superior Offer; (iii) Parent’s board of directors determines in good faith, after having taken into account the advice of Parent’s outside legal counsel, that the failure to take such action could reasonably be expected to be inconsistent with Applicable Law; (iv) prior to furnishing any such non-public information to, or entering into discussions or negotiations with, such Person, Parent receives from such Person an executed confidentiality agreement containing confidentiality and use provisions consistent with the obligations of Parent under this Agreement and no less favorable in the aggregate to Parent than such provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement; and (v) prior to, or concurrently with, furnishing any non-public information to such Person, Parent furnishes such non-public information to the Company (to the extent such non-public information has not been furnished previously by Parent to the Company).
(c) If Parent, any Subsidiary of Parent or any Representative of Parent or any of its Subsidiaries receives an Acquisition Proposal, an Acquisition Inquiry or any request for non-public information at any time prior to the approval of the Parent Common Stock Issuance by the Required Parent Stockholder Vote, then Parent shall promptly (and in no event later than twenty-four (24) hours after receipt of such Acquisition Proposal, Acquisition Inquiry or request): (i) advise the Requisite Company in writing of such Acquisition Proposal, Acquisition Inquiry or request (including the identity of the Person making or submitting such Acquisition Proposal, Acquisition Inquiry or request and the material terms and conditions thereof); and (ii) provide the Company with copies of all documents and communications received by Parent Voteor any of its Subsidiaries or any Representative of Parent or any of its Subsidiaries setting forth the terms and conditions of, during the Interim Period or otherwise relating to, such Acquisition Proposal, Acquisition Inquiry or request. Parent shall notkeep the Company reasonably informed with respect to the status of any such Acquisition Proposal, Acquisition Inquiry or request and any modification or proposed modification thereto, and shall cause promptly (and in no event later than twenty-four (24) hours after transmittal or receipt of any correspondence or communication) provide the Company with a copy of any correspondence or communication between or otherwise involving (1) Parent or any of its Subsidiaries or any Representative of Parent or any of its Subsidiaries and its and their officers(2) the Person that made or submitted such Acquisition Proposal, employees and directors not toAcquisition Inquiry or request or any Representative of such Person.
(d) Parent shall, and shall ensure that each of its Subsidiaries and shall use reasonable best efforts to cause the other Representatives of Parent not toits and their respective Representatives, directly immediately cease and cause to be terminated any existing solicitation, encouragement, inducement or indirectly (i) solicitfacilitation of, initiate, propose, induce or knowingly take any action to facilitate or encourage the submission of any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter into, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information Person relating to any Acquisition Proposal or Acquisition Inquiry.
(e) Promptly after the date of this Agreement and in any event within two (2) Business Days, Parent shall (i) request, and use commercially reasonable efforts to cause, each Person that has executed a confidentiality or similar agreement in connection with such Person’s consideration of a possible Acquisition Proposal or investment in Parent or any of its Subsidiaries to, afford access to return or destroy all confidential information previously furnished to such Person within twenty-four (24) months prior to the business, properties, assets, books, date of this Agreement by or records on behalf of any of Parent or any of its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making any Representative of any proposal or offer that constitutes, or would reasonably be expected to result in, a Parent Takeover Proposal; (iii) amend or grant any waiver or release under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of Parent or its Subsidiaries; (iv) enter into any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Parent Takeover Proposal (each, a “Parent Acquisition Agreement”); (v) submit any Parent Takeover Proposal to the vote of the stockholders of Parent; or (vi) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding that notwithstanding anything to the contrary in this Agreement, Parent or any of its Representatives may, in response to an inquiry or proposal and (ii) prohibit any third party from a Third Party, inform such Third Party of the restrictions imposed by the provisions of this Section 7.02. Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Parent Takeover Proposal and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate having access by any Third Party to any physical or electronic data room relating to any potential possible Acquisition Proposal or Acquisition Inquiry.
(f) Parent Takeover Proposal. Without limiting acknowledges and agrees that if it (i) authorizes any of its or the generality Acquired Companies’ Representatives to take any action or (ii) is made aware of an action by one or more of its or the foregoingAcquired Companies’ Representatives and does not use its reasonable best efforts to prohibit or terminate such action, it is understood that any breach of the restrictions set forth then in this Section 7.02(a) by any Representative of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to either case, such Representatives) shall be deemed to action would constitute a breach of this Section 7.02(a) by Parent4.5.
Appears in 1 contract
Samples: Merger Agreement (CarLotz, Inc.)
Parent No Solicitation. (a) Solely prior to receipt of the Requisite Parent Vote, during the Interim Period Parent shall will not, shall and will cause each of its Subsidiaries and its and their officersrespective directors, officers and employees and directors not to, and shall instruct and shall use its reasonable best efforts to cause the its other Representatives of Parent not to, directly or indirectly indirectly:
(i) make, solicit, initiate, propose, induce knowingly encourage or knowingly take any action to facilitate or encourage cooperate with any inquiries regarding, or the submission of or announcement by any Parent Takeover Proposal Person or “group” (as defined in the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; Exchange Act and the rules thereunder) (iiother than the Company and its Representatives) enter intoof, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access to the business, properties, assets, books, or records of Parent or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, a any Parent Takeover Proposal; Acquisition Proposal or Parent Acquisition Transaction;
(ii) furnish, or afford access to, (including through any virtual data room) any information that is not publicly available as of the date hereof or is made publicly available after the date hereof pursuant to applicable Law or stock exchange requirements, regarding Parent or its businesses, operations, assets, liabilities, financial condition, books and records, prospects or employees to any Person or “group” (as defined in the Exchange Act and the rules thereunder) (other than to Parent or any of its Affiliates or Representatives) in connection with, for the purpose of assisting, soliciting, initiating, encouraging or facilitating, or in response to, or that would reasonably be expected to lead to, any Parent Acquisition Proposal or Parent Acquisition Transaction;
(iii) enter into, continue, engage in or otherwise participate in any discussions or negotiations with any Person or “group” (as defined in the Exchange Act and the rules thereunder) (other than the Company or its Representatives) with respect to, any Parent Acquisition Proposal or any Parent Acquisition Transaction, or any agreement, arrangement or understanding (including any letter of intent or similar document, agreement, commitment, or agreement in principle with respect to any Parent Acquisition Proposal or Parent Acquisition Transaction), or any inquiry, proposal or offer that would reasonably be expected to lead to any Parent Acquisition Proposal or Parent Acquisition Transaction, or announce an intention to do so;
(iv) approve, adopt, endorse, recommend or enter into, or propose to approve, adopt, endorse, recommend or enter into, any letter of intent or similar document, agreement, commitment or agreement in principle with respect to any Parent Acquisition Proposal or Parent Acquisition Transaction; or
(v) release any third Person, or waive any provision of, any confidentiality agreement to which such Person is a party and which directly relates to a potential Parent Acquisition Proposal or Parent Acquisition Transaction.
(b) If Parent or, to the Knowledge of Parent, any of its Representatives receives a Parent Acquisition Proposal or any inquiry, proposal or offer, request for information or request for discussions or negotiations, regarding or constituting a Parent Acquisition Proposal or Parent Acquisition Transaction or that is reasonably likely to lead to a Parent Acquisition Proposal or Parent Acquisition Transaction, then Parent shall promptly (and in no event later than forty eight (48) hours after its receipt of such Parent Acquisition Proposal or such inquiry, proposal, offer or request) notify the Company in writing of such Parent Acquisition Proposal or such inquiry, proposal, offer or request (which notification shall, unless expressly prohibited by a confidentiality agreement in effect as of the date hereof, include the identity of the Person making or submitting such request or Parent Acquisition Proposal and a copy of any such written Parent Acquisition Proposal or such written inquiry, proposal, offer or request (or, if not in writing, the material terms and conditions thereof)). Parent shall keep the Company promptly informed of the status of any such Parent Acquisition Proposals, inquiries, proposals, offers or requests.
(c) Promptly following the execution and delivery of this Agreement, Parent shall, and shall instruct and cause each of its Affiliates and its and their respective directors, officers and employees, and shall use reasonable best efforts to cause its other Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person “group” (as defined in the Exchange Act and the rules thereunder) (other than the Company or its Representatives) relating to any Parent Acquisition Proposal or Parent Acquisition Transaction made on, prior to or after the date hereof. Parent shall not, and shall cause its Subsidiaries not to, release any third party from, or waive, amend or modify any provision of, or grant any waiver or release permission under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of Parent or its Subsidiaries; (iv) enter into provision in any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Parent Takeover Proposal (each, a “Parent Acquisition Agreement”); (v) submit any Parent Takeover Proposal to the vote of the stockholders of Parent; or (vi) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding that notwithstanding anything to the contrary in this Agreement, which Parent or any of its Representatives may, in response to an inquiry or proposal from Subsidiaries is a Third Party, inform such Third Party party.
(d) Any violation of the restrictions imposed by the provisions of this Section 7.02. Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Parent Takeover Proposal and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party to any physical or electronic data room relating to any potential Parent Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any breach of the restrictions set forth contained in this Section 7.02(a) 7.2 by any Representative of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) Parent’s Representatives shall be deemed to constitute be a breach of this Section 7.02(a) 7.2 by Parent.
Appears in 1 contract
Samples: Merger Agreement (VPC Impact Acquisition Holdings III, Inc.)
Parent No Solicitation. (a) Solely prior to receipt of the Requisite Parent Voteagrees that, during the Interim Period Parent Pre-Closing Period, it shall not, and shall not authorize any of its Representatives to (and it shall use its reasonable best effort to cause its Subsidiaries and its and their officers, employees and directors Representatives not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to), directly or indirectly indirectly: (i) solicit, initiate, proposeinitiate or knowingly encourage, induce or knowingly facilitate the communication, making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action to facilitate or encourage the submission of any Parent Takeover Proposal or the making of any proposal that would could reasonably be expected to lead to any Parent Takeover Proposalan Acquisition Proposal or Acquisition Inquiry; (ii) enter intofurnish any information regarding Parent to any Person for the purpose of encouraging, continueor in response to, conductan Acquisition Proposal or Acquisition Inquiry, engage provided that the foregoing clause (ii) shall not prohibit filings required by applicable securities Laws, including but not limited to Section 15(c) or 15(d) of the Exchange Act, or stock exchange rule, or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating directing such person to Parent or its Subsidiaries to, afford access to the business, properties, assets, books, or records of Parent or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result in, a Parent Takeover ProposalParent’s SEC filings; (iii) amend engage in discussions (other than to inform any Person of the existence of the provisions in this Section 5.3) or grant negotiations with any waiver or release under, or fail to enforce, any standstill or similar agreement Person with respect to any class of equity securities of Parent Acquisition Proposal or its SubsidiariesAcquisition Inquiry; (iv) enter into approve, endorse or recommend any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Parent Takeover Acquisition Proposal (each, a “Parent Acquisition Agreement”subject to Section 5.7); (v) submit execute or enter into any Parent Takeover Proposal letter of intent or any Contract contemplating or otherwise relating to the vote any Acquisition Transaction (other than a confidentiality agreement permitted under this Section 5.3(a)); (vi) publicly propose to do any of the stockholders of Parentforegoing; or (vivii) approveagree, authorizeresolve or commit (or, for the avoidance of doubt, Parent Board or any committee thereof to resolve, agree or publicly announce an intention commit) to do any of the foregoing; provided, that notwithstanding that however, that, notwithstanding anything to the contrary contained in this AgreementSection 5.3 and subject to compliance with this Section 5.3, prior to obtaining the Required Parent Stockholder Vote, Parent may furnish non-public information regarding Parent to, and enter into discussions or negotiations with, any Person in response to an unsolicited bona fide written Acquisition Proposal by such Person, which the Parent Board determines in good faith, after consultation with Parent’s outside financial advisors and outside legal counsel, constitutes, or would be reasonably likely to result in, a Superior Offer (and is not withdrawn) if: (A) neither Parent nor any of its Representatives mayshall have materially breached this Section 5.3, (B) the Parent Board concludes in good faith based on the advice of outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with the fiduciary duties of the Parent Board under applicable Law; (C) Parent receives from such Person an executed confidentiality agreement containing provisions, in response the aggregate, at least as favorable to an inquiry or proposal from a Third Party, inform such Third Party of Parent as those contained in the restrictions imposed by the provisions of this Section 7.02. Parent shall, Confidentiality Agreement; and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiations, if any, (D) substantially contemporaneously with any Third Party conducted prior to the date hereof with respect to any Parent Takeover Proposal and shall use its reasonable best efforts to cause furnishing any such Third Party (or its agents or advisors) in possession of non-public information in respect of to such Person, Parent and its Subsidiaries that was furnishes such non-public information to the Company (to the extent such information has not been previously furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party to any physical or electronic data room relating to any potential Parent Takeover Proposalthe Company). Without limiting the generality of the foregoing, it is understood that any breach of Xxxxxx acknowledges and agrees that, in the restrictions set forth in this Section 7.02(a) by event any Representative of Parent (solely for this purpose as whether or not such Representative is purporting to act on behalf of Parent) takes any action that, if the restrictions on Parent set forth in taken by Xxxxxx, would constitute a breach of this Section 7.02(a) applied directly to 5.3, the taking of such Representatives) action by such Representative shall be deemed to constitute a breach of this Section 7.02(a5.3 by Parent for purposes of this Agreement.
(b) by ParentIf Parent or any Representative of Parent receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then Parent shall promptly (and in any event within 24 hours) advise the Company orally and in writing of (i) the receipt of such Acquisition Proposal or Acquisition Inquiry, (ii) any non-public information provided to a Person who has made an Acquisition Proposal or Acquisition Inquiry in response to a request from such Person, (iii) the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and (iv) the material terms thereof as well as complete copies of any written Acquisition Proposals, Acquisition Inquiries or any other written communications from such Person or its Representatives, including any proposed agreements, and Parent thereafter shall keep the Company reasonably informed, on a reasonably current basis, with respect to the status and material terms of any such Acquisition Proposal or Acquisition Inquiry, including informing the Company on a reasonably current basis (and, in any event, within 24 hours) of any material amendment or modification or proposed material amendment or modification to any such Acquisition Proposal or Acquisition Inquiry.
(c) Parent shall immediately cease and cause to be terminated any existing discussions, negotiations and communications with any Person that relate to any Acquisition Proposal or Acquisition Inquiry that has not already been terminated as of the date of this Agreement and request the destruction or return of any non-public information of Parent provided to such Person as soon as practicable after the date of this Agreement.
Appears in 1 contract
Parent No Solicitation. (a) Solely prior to receipt Parent will not, and Parent will cause each of the Requisite Parent Vote, during the Interim Period Parent shall not, shall cause its Subsidiaries not to and its and instruct their officers, employees and directors respective Representatives not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not toexcept as expressly permitted by this Section 4.3 or Section 4.6, directly or indirectly indirectly:
(i) solicit, initiate, proposeknowingly encourage, induce knowingly induce, knowingly assist or knowingly take facilitate any action to facilitate inquiries regarding, or encourage the submission of or announcement by any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter intoPerson of, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access to the business, properties, assets, books, or records of Parent or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, any Parent Acquisition Proposal (provided, however, that Parent and its Representatives may refer the Person making such proposal or offer to the provisions of this Section 4.3 and make inquiries of a Person making a Parent Takeover Acquisition Proposal (and its Representatives) to solely clarify the terms of, such Parent Acquisition Proposal for the purpose of the Parent Board informing itself about such Parent Acquisition Proposal; );
(ii) furnish any information regarding Parent or any Parent Subsidiary (other than to the Company and the Company Subsidiaries (and their Representatives)), or afford access to Parent’s or the Parent Subsidiary’s Representatives, books, records or property, in each case, in connection with, for the purpose of soliciting, initiating, encouraging or facilitating, or in response to, any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Parent Acquisition Proposal;
(iii) amend engage in, enter into, continue or grant otherwise participate in any waiver discussions or release under, or fail to enforce, negotiations with any standstill or similar agreement Person with respect to any class Parent Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Parent Acquisition Proposal (provided, however, that Parent and its Representatives may refer the Person making any such inquiry, proposal or offer to the provisions of equity securities this Section 4.3 and make inquiries of a Person making a Parent or Acquisition Proposal (and its SubsidiariesRepresentatives) solely to clarify the terms of, such Parent Acquisition Proposal for the purpose of the Parent Board informing itself about such Parent Acquisition Proposal); or
(iv) approve, adopt, recommend, agree to or enter into into, or publicly propose to approve, adopt, recommend, agree to or enter into, any agreement in principle, memorandum of understanding, letter of intent, term sheetmemorandum of understanding or similar document, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreementcommitment, or other Contract relating agreement in principle with respect to any Parent Takeover Proposal (each, a “Parent Acquisition Agreement”)Proposal; or
(v) submit any Parent Takeover Proposal to the vote of the stockholders of Parent; resolve or (vi) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding that however, that, notwithstanding anything to the contrary contained in this Agreement, prior to obtaining the Required Parent Stockholder Vote, Parent and its Representatives may engage or otherwise participate in discussions or negotiations with, and provide information to, any Person (or its Representatives or its financing sources or their Representatives) that has made a bona fide written Parent Acquisition Proposal after the date hereof that did not result from any breach of this Section 4.3(a) or Section 4.3(c) by Parent, any of the Parent Subsidiaries or any of its or their respective Representatives mayif: (A) prior to taking any such action, the Parent Board determines in good faith, after consultation with Parent’s outside legal counsel and its financial advisor, that such Parent Acquisition Proposal either constitutes a Parent Superior Proposal or would reasonably be expected to lead to a Parent Superior Proposal; and (B) prior to providing any information regarding Parent or any Parent Subsidiary to such third party in response to such Parent Acquisition Proposal, Parent receives from such third party (or there is then in effect with such party) an executed confidentiality agreement that contains nondisclosure provisions that are at least as restrictive of such third party as the Non-Disclosure Agreement and that does not prohibit compliance by Parent with this Section 4.3. Prior to or substantially concurrently with providing any non-public information to such third party, Parent shall make such non-public information available to the Company (to the extent such non-public information has not been previously made available by Parent to the Company). Parent shall promptly (and in any event within 48 hours) inform the Company if Parent furnishes non-public information and/or enters into discussions or negotiations as provided for in this Section 4.3(a) and will keep the Company reasonably informed, on a current basis (and, in any event, within 48 hours), of the status and material terms of any Parent Acquisition Proposal (including any material changes to the material terms thereof) and the status of any material discussions and negotiations with respect thereto.
(b) If Parent receives a Parent Acquisition Proposal or any inquiry or proposal from request for information with respect to a Third PartyParent Acquisition Proposal or that is reasonably likely to lead to a Parent Acquisition Proposal, inform then Parent shall promptly (and in no event later than 48 hours after its receipt of such Third Party Parent Acquisition Proposal) notify the Company in writing of such Parent Acquisition Proposal or request (which notification shall include the identity of the restrictions imposed by Person making or submitting such request or Parent Acquisition Proposal and an unredacted copy of any such written request or proposal (or, if not in writing, the provisions material terms and conditions thereof)), together with copies of any proposed transaction agreements, and Parent shall thereafter keep the Company reasonably informed, on a current basis (and, in any event, within 48 hours), of the status of such Parent Acquisition Proposal or request, including informing the Company of any material change to the terms of such Parent Acquisition Proposal, and the status of any negotiations, including any change in its intentions as previously notified.
(c) Promptly following the execution and delivery of this Section 7.02. Agreement (and in any event within 24 hours after the execution and delivery of this Agreement), Parent shall, and shall cause each of the Parent Subsidiaries and shall instruct its Subsidiaries to and their respective Representatives to, promptly cease immediately and cause to be terminatedterminated any existing solicitation of, and shall notor discussions or negotiations with, shall cause its Subsidiaries any Person (other than the Company and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts Representatives) relating to cause the other Representatives of any Parent not to continue, any and all existing activities, discussions, or negotiations, if any, with any Third Party conducted Acquisition Proposal made prior to the date hereof with respect to and any Parent Takeover Proposal and shall use its reasonable best efforts to cause access any such Third Party (or its agents or advisors) in possession of non-public information in respect of Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party Persons may have to any physical or electronic data room relating to any potential Parent Takeover Acquisition Proposal. Without limiting Parent shall not, and shall cause its Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which Parent or any of its Affiliates is a party unless the generality of failure to take such action would reasonably be expected to be inconsistent with the foregoing, it is understood that any breach Parent Board’s fiduciary duties to Parent and its stockholders under applicable Legal Requirements.
(d) Any violation of the restrictions set forth contained in this Section 7.02(a) 4.3 by any Representative of the Parent Subsidiaries or any Representatives of Parent (solely for this purpose as if or any of the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) Subsidiaries shall be deemed to constitute be a breach of this Section 7.02(a) 4.3 by Parent.
Appears in 1 contract
Samples: Merger Agreement (Bioventus Inc.)
Parent No Solicitation. (a) Solely prior to receipt of the Requisite Parent Vote, during the Interim Period Parent shall will not, shall and will cause each of its Subsidiaries and its and their officersrespective directors, officers and employees and directors not to, and shall instruct and shall use its commercially reasonable best efforts to cause the its other Representatives of Parent not to, directly or indirectly indirectly:
(i) make, solicit, initiate, propose, induce knowingly encourage or knowingly take any action to facilitate or encourage cooperate with any inquiries regarding, or the submission of or announcement by any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter intoPerson of, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access to the business, properties, assets, books, or records of Parent or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, any Parent Acquisition Proposal;
(ii) furnish any information regarding Parent or any Subsidiary of Parent in connection with, for the purpose of making, soliciting, initiating, encouraging or facilitating, or in response to, a Parent Takeover Acquisition Proposal; ;
(iii) engage in or otherwise participate in any discussions or negotiations with any Person with respect to any Parent Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Parent Acquisition Proposal; or
(iv) approve, adopt, endorse, recommend or enter into, or propose to approve, adopt, endorse, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle with respect to any Parent Acquisition Proposal.
(b) If Parent receives a Parent Acquisition Proposal or any inquiry or request for information with respect to a Parent Acquisition Proposal or that is reasonably likely to lead to a Parent Acquisition Proposal, then Parent shall promptly (and in no event later than forty eight (48) hours after its receipt of such Parent Acquisition Proposal or request) notify the Company in writing of such Parent Acquisition Proposal or request (which notification shall, unless expressly prohibited by a confidentiality agreement in effect as of the date hereof, include the identity of the Person making or submitting such request or Parent Acquisition Proposal and a copy of any such written request or proposal (or, if not in writing, the material terms and conditions thereof)).
(c) Promptly following the execution and delivery of this Agreement, Parent shall, and shall instruct and cause each of its Affiliates and its and their respective directors, officers and employees, and shall use its commercially reasonable efforts to cause its other Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person (other than the Company and its Representatives) relating to any Parent Acquisition Proposal made on or prior to the date hereof. Parent shall not, and shall cause its Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant any waiver or release permission under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of Parent or its Subsidiaries; (iv) enter into provision in any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Parent Takeover Proposal (each, a “Parent Acquisition Agreement”); (v) submit any Parent Takeover Proposal to the vote of the stockholders of Parent; or (vi) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding that notwithstanding anything to the contrary in this Agreement, which Parent or any of its Representatives may, in response to an inquiry or proposal from Affiliates is a Third Party, inform such Third Party party.
(d) Any violation of the restrictions imposed by the provisions of this Section 7.02. Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Parent Takeover Proposal and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party to any physical or electronic data room relating to any potential Parent Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any breach of the restrictions set forth contained in this Section 7.02(a) 7.2 by any Representative of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) Parent’s Representatives shall be deemed to constitute be a breach of this Section 7.02(a) 7.2 by Parent.
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Parent No Solicitation. (a) Solely prior to receipt of the Requisite Except as expressly permitted by this Section 5.5, Parent Vote, during the Interim Period Parent shall not, shall cause its Subsidiaries and its and their officers, employees and directors not toshall, and shall and shall use reasonable best efforts to cause the other Representatives each of Parent not to, directly or indirectly (i) solicit, initiate, propose, induce or knowingly take any action to facilitate or encourage the submission of any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter into, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access and instruct its and their respective Representatives to: (i) immediately cease any solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Parent Takeover Proposal and (ii) from and after the businessdate of this Agreement until the Effective Time or, propertiesif earlier, assetsthe termination of this Agreement in accordance with Article VII, booksnot, directly or records of Parent or its Subsidiaries toindirectly, (A) solicit, initiate or knowingly assist, knowingly facilitate, facilitate or knowingly encourage any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, a Parent Takeover Proposal; , (iiiB) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any other person any non-public information in connection with or for the purpose of encouraging or facilitating, a Parent Takeover Proposal or (C) 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 providing for a Parent Takeover Proposal.
(b) Except as expressly provided by this Agreement, Parent shall not take any action to exempt any person from the restrictions on “business combinations” contained in DGCL 203 or the Parent Organizational Documents or otherwise cause such restrictions not to apply. Except (i) as necessary to take any actions that Parent or any third party would otherwise be permitted to take pursuant to this Section 5.5 (and in such case only in accordance with the terms hereof) or (ii) if the Parent Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that any such action or forbearance would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (A) Parent and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under any (1) standstill provision in any agreement to which Parent or any of its Subsidiaries is a party or (2) confidentiality provision in any agreement to which Parent or any of its Subsidiaries is a party (excluding any waiver under a confidentiality provision that does not, and would not reasonably be likely to, facilitate or release underencourage a Parent Takeover Proposal) and (B) Parent shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement.
(c) Notwithstanding anything to the contrary contained in this Section 5.5, if at any time from and after the date of this Agreement and prior to obtaining the Parent Stockholder Approval, Parent, directly or fail indirectly receives a bona fide, unsolicited written Parent Takeover Proposal from any person that did not result from a material breach (or a deemed material breach) of this Section 5.5 and if the Parent Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Parent Takeover Proposal constitutes or would reasonably be expected to enforcelead to a Parent Superior Proposal, any standstill and failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then Parent and its Representatives may, directly or similar agreement indirectly, (i) furnish, pursuant to a Parent Acceptable Confidentiality Agreement, information (including non-public information) with respect to any class of equity securities Parent and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of Parent and its Subsidiaries, to the person that has made such Parent Takeover Proposal and its Representatives and potential sources of funding; provided that Parent shall substantially concurrently with the delivery to such person provide to the Company any non-public information concerning Parent or any of its Subsidiaries that is provided or made available to such person or its Subsidiaries; Representatives unless such non-public information has been previously provided or made available to the Company and (ivii) enter into any agreement engage in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any otherwise participate in discussions or negotiations with the person making such Parent Takeover Proposal (eachincluding as a part thereof, a making counterproposals) and its Representatives and potential sources of financing regarding such Parent Takeover Proposal. “Parent Acquisition Acceptable Confidentiality Agreement”); (v) submit ” means any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to Parent Takeover Proposal than those applicable to the vote of Company that are contained in the stockholders of ParentConfidentiality Agreement; or (vi) approve, authorize, agree or publicly announce an intention to do provided that such confidentiality agreement shall not prohibit compliance by Parent with any of the foregoing; provided, that notwithstanding that notwithstanding provisions of this Section 5.5. Notwithstanding anything to the contrary in this Agreement, (A) Parent may grant a waiver, amendment or release under any of its Representatives mayconfidentiality agreement, in response to an inquiry standstill agreement or proposal from a Third Party, inform such Third Party of the restrictions imposed by the provisions of this Section 7.02. Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiations, if any, with any Third Party conducted prior similar agreement to the date hereof with respect extent necessary to any allow a Parent Takeover Proposal and shall use its reasonable best efforts to cause any such Third Party be made to Parent or the Parent Board (or its agents or advisorsany committee thereof), and (B) in possession the Parties agree that, by execution of non-public information in respect of this Agreement, Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party to any physical or electronic data room relating to any potential Parent Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any breach of the restrictions set forth in this Section 7.02(a) by any Representative of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) shall be deemed to constitute a breach have waived, as of immediately prior to the execution and delivery of this Section 7.02(a) by ParentAgreement, any provision in any such agreement to the extent necessary to allow the applicable counterparty to convey a Parent Takeover Proposal to Parent or the Parent Board (or any committee thereof).
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Parent No Solicitation. (a) Solely prior to receipt of the Requisite Parent Vote, during the Interim Period Parent shall will not, shall and will cause each of its Subsidiaries and its and their officersrespective directors, employees officers and directors not toemployees, and shall instruct and shall use its reasonable best efforts to cause the its other Representatives of Parent not to, directly or indirectly indirectly:
(i) make, solicit, initiate, propose, induce knowingly encourage or knowingly take facilitate any action to facilitate inquiries regarding, or encourage the submission of or announcement by any Parent Takeover Proposal or the making of any proposal that would reasonably be expected to lead to any Parent Takeover Proposal; (ii) enter intoPerson of, continue, conduct, engage or otherwise participate in in any discussions or negotiations with, disclose any non-public information relating to Parent or its Subsidiaries to, afford access to the business, properties, assets, books, or records of Parent or its Subsidiaries to, or knowingly assist, knowingly facilitate, or knowingly encourage the making of any proposal or offer that constitutes, or would reasonably be expected to result inlead to, any Parent Acquisition Proposal;
(ii) furnish any information regarding Parent or any Subsidiary of Parent in connection with, for the purpose of making, soliciting, initiating, encouraging or facilitating, or in response to, a Parent Takeover Acquisition Proposal; ;
(iii) engage in or otherwise participate in any discussions or negotiations with any Person with respect to any Parent Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Parent Acquisition Proposal; or
(iv) approve, adopt, recommend or enter into, or propose to approve, adopt, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle with respect to any Parent Acquisition Proposal.
(b) If Parent receives a Parent Acquisition Proposal or any inquiry or request for information with respect to a Parent Acquisition Proposal or that is reasonably likely to lead to a Parent Acquisition Proposal, then Parent shall promptly (and in no event later than forty eight (48) hours after its receipt of such Parent Acquisition Proposal or request) notify the Company (or after the Reorganization, Newco) in writing of such Parent Acquisition Proposal or request (which notification shall include the identity of the Person making or submitting such request or Parent Acquisition Proposal and a copy of any such written request or proposal (or, if not in writing, the material terms and conditions thereof)), and Parent shall thereafter keep the Company (or after the Reorganization, Newco) reasonably informed, on a current basis (and, in any event, within twenty four (24) hours), of the status of such Parent Acquisition Proposal or request, including informing the Company (or after the Reorganization, Newco) of any material change to the terms of such Parent Acquisition Proposal, and any material change in such Person’s intentions as previously notified.
(c) Promptly following the execution and delivery of this Agreement, Parent shall, and shall instruct and cause each of its Affiliates and its and their respective directors, officers and employees, and shall use reasonable best efforts to cause its other Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person (other than the Company (or after the Reorganization, Newco) and its Representatives) relating to any Parent Acquisition Proposal made on or prior to the date hereof. Parent shall not, and shall cause its Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant any waiver or release permission under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of Parent or its Subsidiaries; (iv) enter into provision in any agreement in principle, memorandum of understanding, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Parent Takeover Proposal (each, a “Parent Acquisition Agreement”); (v) submit any Parent Takeover Proposal to the vote of the stockholders of Parent; or (vi) approve, authorize, agree or publicly announce an intention to do any of the foregoing; provided, that notwithstanding that notwithstanding anything to the contrary in this Agreement, which Parent or any of its Representatives may, in response to an inquiry or proposal from Affiliates is a Third Party, inform such Third Party party.
(d) Any violation of the restrictions imposed by the provisions of this Section 7.02. Parent shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not, shall cause its Subsidiaries and its and their officers, employees and directors not to, and shall and shall use reasonable best efforts to cause the other Representatives of Parent not to continue, any and all existing activities, discussions, or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Parent Takeover Proposal and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of Parent and its Subsidiaries that was furnished by or on behalf of Parent or its Subsidiaries to return or destroy (and confirm destruction of) all such information and immediately terminate access by any Third Party to any physical or electronic data room relating to any potential Parent Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any breach of the restrictions set forth contained in this Section 7.02(a) 7.2 by any Representative of Parent (solely for this purpose as if the restrictions on Parent set forth in this Section 7.02(a) applied directly to such Representatives) Parent’s Representatives shall be deemed to constitute be a breach of this Section 7.02(a) 7.2 by Parent.
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