Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or would reasonably be expected to lead to, a Superior Offer, the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements): (i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and (ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third party.
Appears in 4 contracts
Samples: Agreement and Plan of Reorganization (Visual Sciences, Inc.), Agreement and Plan of Reorganization (Omniture, Inc.), Agreement and Plan of Reorganization (Visual Sciences, Inc.)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a5.4(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisoradvisors (including the Independent Financial Advisor), ) is, or would is reasonably be expected likely to lead to, a Superior Offer, the Company may then take any or all of the following actions (but only (1) if (i) the Company has not materially breached any of the provisions set forth in this Section 5.4 in connection with such Acquisition Proposal did Proposal, (2) the Scheme Meeting has not arise (directly or indirectly) from a breach of Section 5.3(a) occurred and (ii3) to the extent the Board of Directors of the Company concludes in good faith, faith (after consultation with its outside legal counsel, ) that the failure to do so would be reasonably be expected likely to result in a breach of its fiduciary obligations duties under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) at least forty-eight (148) within twenty-four hours of prior to furnishing any such nonpublic information to such party, the Company it gives Parent Acquiror written notice that it has (or intends to) of its intention to furnish such nonpublic information and the identity of the Person or group making any such Acquisition Proposal and a copy of all written and electronic materials provided in connection with such Acquisition Proposal, (2B) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement and provided that such agreement shall not contain terms which prevent the Company from complying with its obligations under this Agreement (Bincluding this Section 5.4), (C) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent Acquiror (to the extent such nonpublic information has not been previously so furnishedfurnished or made available), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (yD) the Company shall it does not be required to provide supply such information if doing so would be inconsistent third party with any applicable antitrust Legal Requirementinformation unless specifically requested by such third party and does not in any way assist such third party to refine or supplement its request; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twentyat least forty-four eight (48) hours of prior to entering into discussions or negotiations with such third party, the Company it gives Parent Acquiror written notice that it has (or intends to) of such party’s intention to enter into discussions or negotiations with such third party.
Appears in 3 contracts
Samples: Implementation Agreement (Advantest Corp), Implementation Agreement (Verigy Ltd.), Implementation Agreement (Verigy Holding Co. Ltd.)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisor), advisors) is, or would could reasonably be expected to lead to, a Superior OfferOffer (as defined in Section 5.3(g)(ii)), the Company may then take any or all of the following actions (but only (X) if Company has not materially breached Section 5.3, (iy) such Acquisition Proposal did Company’s Stockholders’ Meeting has not arise (directly or indirectly) from a breach of Section 5.3(a) occurred and (iiz) to the extent the Board of Directors of the Company concludes in good faith, faith (after consultation with its outside legal counsel, ) that the failure to do so would be reasonably be expected likely to result in a breach of its fiduciary obligations duties under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of at least two business days prior to furnishing any such nonpublic information to such party, the Company it gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and the identity of the Person or group making any such Acquisition Proposal and a copy of all written and electronic materials provided in connection with such Acquisition Proposal, (2B) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, the terms of which (including standstill provisions) are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Non-Disclosure Agreement (as defined in Section 5.4(a)), provided that such agreement shall not contain terms that prevent Company from complying with its obligations under this Section 5.3, and (BC) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnishedfurnished or made available), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of at least two business days prior to entering into discussions or negotiations with such third party, the Company it gives Parent written notice that it has (or intends to) of Company’s intention to enter into discussions or negotiations with such third party.
Appears in 3 contracts
Samples: Merger Agreement (Divx Inc), Merger Agreement (Divx Inc), Merger Agreement (Sonic Solutions/Ca/)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that Parent or the Company Company, as the case may be, receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after consultation with following the receipt of advice of its outside legal counsel and its financial advisor), contains financial terms that are superior to the terms of this Agreement and otherwise is, or would is reasonably be expected likely to lead to, a Superior OfferOffer (as defined in Section 5.3(g)), Parent or the Company Company, as the case may be, may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that its Board of Directors of the Company concludes in good faith, after consultation with following the receipt of advice of its outside legal counselcounsel and its financial advisor, that the failure to do so would be reasonably be expected likely to result in constitute a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, it gives the Company gives Parent other party hereto written notice that it has (or intends to) furnish is furnishing such nonpublic information and information, (2B) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s or Parent’s behalf, as the case may be, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 5.4(a)), and (BC) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent the other party hereto (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, it gives the Company gives Parent other party hereto written notice that it has (or intends to) of such party’s intention to enter into discussions or negotiations with such third party.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (McData Corp), Merger Agreement, Agreement and Plan of Reorganization (Brocade Communications Systems Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a6.1(a), prior to the acceptance of a majority of the then outstanding Shares by Merger Sub in the Offer, in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company it may then take the following actions (but only (A) if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that its Board of Directors of the Company concludes in good faith, after following consultation with its outside legal counsel, that there is a reasonable possibility that the failure to do so would result in a breach of its fiduciary obligations under applicable Legal Requirements and (B) after the Company has given written notice ("Superior Offer Notice") to Parent that expressly states (1) that it has received a bona fide, written Acquisition Proposal from a third party that the Company's Board of Directors has in good faith concluded (following consultation with its outside legal counsel and its financial advisor), is, or is reasonably be expected likely to result in, a Superior Offer, (2) that the Company's Board of Directors has concluded in good faith, following consultation with its outside legal counsel, that there is a reasonable possibility that the failure to take such action would result in a breach of its fiduciary obligations under applicable Legal Requirements, (3) the identity of the third party making such Acquisition Proposal and the material terms and conditions of such Acquisition Proposal, and (4) the nature of the action that the Company intends to take):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 6.2(a)) and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third party.
Appears in 3 contracts
Samples: Merger Agreement (Paravant Inc), Merger Agreement (Paravant Inc), Merger Agreement (DRS Technologies Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company or Parent receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior OfferOffer (as defined in Section 5.3(g)(ii)), the Company it may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that its Board of Directors of the Company concludes in good faith, after consultation with following the receipt of advice of its outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirementslaw):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (Aa) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, it gives the Company gives Parent other party written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 5.4), it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such third party or having the purported effect of restricting it from satisfying its obligations under this Agreement and (Bb) contemporaneously with or prior to furnishing any such nonpublic information to such third partyparty making an Acquisition Proposal, the Company it furnishes such nonpublic information to Parent the other party (to the extent such nonpublic information has not been previously so furnished), except that (x) together with a complete list identifying all nonpublic information furnished to the Company may redact names of employees (other than officers) set forth in such information and (y) party making the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal RequirementAcquisition Proposal; and
(ii) Engage in discussions or and/or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or and/or negotiations with such third party, it gives the Company gives Parent other party hereto written notice that it has (or intends to) of its intention to enter into discussions or negotiations with such third party.
Appears in 3 contracts
Samples: Merger Agreement (Palm Inc), Agreement and Plan of Reorganization (Palm Inc), Agreement and Plan of Reorganization (Handspring Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a4.2(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior OfferOffer (as defined in Section 4.2(g)), the Company it may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that its Board of Directors of the Company concludes in good faith, after consultation with following the receipt of advice of its outside legal counsel, that the failure to do so would is reasonably be expected likely to result in a breach of its fiduciary obligations under applicable Legal Requirementslaw):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company it gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 5.3), it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations hereunder and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in together with a complete list identifying all nonpublic information furnished to such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirementthird party; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company it gives Parent written notice that it has (or intends to) of its intention to enter into discussions or negotiations with such third party.
Appears in 2 contracts
Samples: Merger Agreement (Yahoo Inc), Merger Agreement (Overture Services Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a5.02(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors or the Special Committee has in good faith concluded (after consultation with following the receipt of advice of its outside legal counsel and its financial advisor), contains financial terms that are superior to the terms of this Agreement and otherwise is, or would is reasonably be expected likely to lead to, a Superior OfferOffer (as defined in Section 5.02(f)), the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that its Board of Directors of or the Company Special Committee concludes in good faith, after consultation with following the receipt of advice of its outside legal counselcounsel and its financial advisor, that the failure to do so would be reasonably be expected likely to result in constitute a breach of its fiduciary obligations under applicable Legal Requirementslaws):
(i) Furnish furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company it gives Parent written notice that it has (or intends to) furnish is furnishing such nonpublic information and information, (2B) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 6.01), and (BC) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company it gives Parent written notice that it has (or intends to) of such party’s intention to enter into discussions or negotiations with such third party.
Appears in 2 contracts
Samples: Merger Agreement (Globalive Communications Corp.), Merger Agreement (Yak Communications Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a)) or elsewhere in this Agreement, in the event that the Company receives an unsolicitedreceives, prior to the approval of the Company Voting Proposal by the stockholders of the Company in accordance with applicable law, a bona fide written Acquisition Proposal from a third party that its and the Company’s Board of Directors has in good faith concluded (concluded, after consultation with its outside legal counsel and its financial advisor), that such Acquisition Proposal is, or would is reasonably be expected likely to lead to, a Superior Offer, the Company may then take the following actions (but only if (i1) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish furnish nonpublic information to the third party making such Acquisition Proposal, provided that Proposal (A) (1) within twenty-four hours of furnishing any such nonpublic information and to such third party’s representatives, financing sources and the Company gives Parent written notice that it has (or intends torepresentatives of such financing sources) furnish such nonpublic information and (2) engage in discussions and negotiations with the third party (and the third party’s representatives, financing sources and the representatives of such financing sources) with respect to such Acquisition Proposal; provided that:
(i) the Company complies in all material respects with all of the terms of this Section 5.3 with respect to such Acquisition Proposal;
(ii) prior to furnishing any nonpublic information or entering into any negotiations or discussions with such third party, (A) the Company receives from the such third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, the terms behalf (a copy of which confidentiality agreement shall be provided to Parent) that are no less at least as favorable to the Company than those contained in as the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that ; and
(xiii) the Company may redact names Board of employees (other than officers) set forth in such information and (y) Directors of the Company shall not be required determines in good faith, after consultation with outside legal counsel, that the failure to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or enter into such discussion or negotiations with would reasonably be expected to be a breach of the third party with respect Board of Directors’ fiduciary duties to the Acquisition Proposal, provided that within twenty-four hours stockholders of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third partyunder applicable law.
Appears in 2 contracts
Samples: Merger Agreement (Solectron Corp), Merger Agreement (Flextronics International Ltd.)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or would reasonably be expected to lead to, a Superior Offer, the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four (24) hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to within the same day as furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and;
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four (24) hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third party; and
(iii) To the extent permitted pursuant to and in compliance with Section 7.1(i), enter into a binding written agreement concerning a transaction that constitutes a Superior Offer.
Appears in 2 contracts
Samples: Merger Agreement (Pharmacopeia Inc), Agreement and Plan of Merger (Ligand Pharmaceuticals Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in In the event that any Person submits to the Company receives (and does not withdraw) an unsolicited, bona fide written Acquisition Proposal from a third party that its the Company Board of Directors has reasonably concludes in good faith concluded (after consultation with its outside legal counsel and its a financial advisor), advisor of national standing) is, or would is reasonably be expected likely to lead tobecome, a Superior Offer, then notwithstanding Section 6.7(a), the Company may then take may, so long as the following actions (but only if Company Stockholders Approval has not yet been obtained, (i) enter into discussions with such Person regarding such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) Proposal, and (ii) deliver or make available to such Person non-public information regarding the Board of Directors Company and the Company Subsidiaries; provided, that: (A) in each case, neither the Company, any Company Subsidiary nor any Representative of the Company concludes shall have violated any of the restrictions set forth in this Section 6.7; (B) in each case, the Company Board first shall have concluded in good faith, after consultation with its outside legal counsel, that such action is reasonably required in order for the failure Company Board to do so would reasonably be expected to result in a breach of comply with its fiduciary obligations to the Company's stockholders under applicable Legal Requirements):
Laws; (iC) Furnish nonpublic information in each case the Company first shall have provided Parent with two Business Days' written notice of the identity of such Person and all of the material terms and conditions of such Acquisition Proposal and of the Company's intention to take actions in response to such Superior Offer, specifying the actions it intends to take; (D) in the case of clause (ii), the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to the third party Company's confidential information as the Confidentiality Agreement, it being understood that such confidentiality agreement shall not include any provision for any exclusive right to negotiate with such Person or having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement; and (E) prior to or contemporaneously with delivering or making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing available any such nonpublic information to such partyPerson, the Company gives Parent written notice that it has (or intends to) furnish shall deliver such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic non-public information to Parent (to the extent such nonpublic non-public information has not been previously so furnished), except that (x) delivered by the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; Parent and
(ii) Engage in discussions or negotiations with the third party with respect , to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third partyextent previously delivered, the Company gives delivers to Parent written notice that it has (or intends to) enter into discussions or negotiations with a complete list identifying all such third partynon-public information delivered to such Person).
Appears in 2 contracts
Samples: Merger Agreement (Primedex Health Systems Inc), Merger Agreement (Radiologix Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives prior to the adoption of this Agreement by the stockholders of the Company in accordance with applicable law an unsolicited, bona fide written Acquisition Proposal from a third party that its did not result from a breach of this Section 5.3 and that the Company’s Board of Directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), that such Acquisition Proposal is, or would is reasonably be expected likely to lead tobe, a Superior Offer, the Company may then take the following actions (but only if (i1) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish furnish nonpublic information to the third party (and its representatives) making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information Proposal and (2) engage in discussions and negotiations (including exchanging draft agreements) with the third party and its representatives with respect to such Acquisition Proposal; provided, however, that:
(i) the Company complies with all of the terms of this Section 5.3;
(ii) prior to furnishing any nonpublic information or entering into any negotiations or discussions with such third party, (1) the Company receives from the such third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, the behalf on terms of which are no less favorable restrictive to the Company such third party than those contained in the Confidentiality Agreement is with respect to Parent (or its affiliates), (2) such third party enters into a standstill agreement on terms no less restrictive to such third party than those of Section 2 of the Exclusivity and Standstill Agreement dated October 17, 2006, as amended (the “Exclusivity and Standstill Agreement”), between Parent and the Company; provided that, in the event such third party does not enter into such a standstill agreement, Section 2 of the Exclusivity and Standstill Agreement shall terminate and be of no further force and effect, and (B3) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that ; and
(xiii) the Company may redact names Board of employees (other than officers) set forth in such information and (y) Directors of the Company shall not be required reasonably determines in good faith, after consultation with outside legal counsel, that the failure to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or enter into such discussion or negotiations with would reasonably be expected to result in a breach of the third party with respect Board of Directors’ fiduciary duties to the Acquisition Proposal, provided that within twenty-four hours stockholders of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third partyunder applicable law.
Appears in 2 contracts
Samples: Merger Agreement (Kanbay International Inc), Merger Agreement (Cap Gemini Sa)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a6.3(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its the Company’s Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), ) is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that the Board of Directors of the Company Company, by vote of a majority of the independent members of the Company’s Board of Directors, concludes in good faith, after consultation with following the receipt of advice of the Company’s outside legal counsel, that the failure such action is necessary and required to do so would reasonably be expected to result in a breach of comply with its fiduciary obligations to the shareholders of the Company under applicable Legal Requirementslaw):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (Aa) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement and (Bb) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in together with a list identifying all nonpublic information furnished to such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirementthird party; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) of the Company’s intention to enter into discussions or negotiations with such third party.
Appears in 2 contracts
Samples: Merger Agreement (Castelle \Ca\), Merger Agreement (Captaris Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a6.3(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its the Company’s Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), ) is, or would is reasonably be expected likely to lead toresult in, a Superior OfferOffer (as defined in Section 6.3(g)(ii)), the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that the Board of Directors of the Company Company, by vote of a majority of the members of the Company’s Board of Directors, concludes in good faith, after consultation with following the receipt of advice of the Company’s outside legal counsel, that the failure such action is necessary and required to do so would reasonably be expected to result in a breach of comply with its fiduciary obligations to the stockholders of the Company under applicable Legal Requirementslaw):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (Aa) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement and (Bb) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) of the Company’s intention to enter into discussions or negotiations with such third party.
Appears in 2 contracts
Samples: Merger Agreement (Advanced Digital Information Corp), Merger Agreement (Quantum Corp /De/)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company Novadigm receives an unsolicited, bona fide written Acquisition Proposal from a third party that did not otherwise result from a breach of this Section 5.3 or the Letter Agreement and its Board of Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisor), ) that such Acquisition Proposal is, or would could reasonably be expected to lead toresult in, a Superior OfferOffer (as defined in Section 5.3(g)), the Company it may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that its Board of Directors of the Company concludes in good faith, after following consultation with its outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):law) for so long as none of the conclusions referenced above changes:
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of one business day prior to furnishing any such nonpublic information to such party, the Company Novadigm gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company Novadigm receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalfagreement, the terms of which are no less favorable to Novadigm than the Company than those terms contained in the Confidentiality Agreement (as defined in Section 5.4(a)) and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company Novadigm furnishes a list of such nonpublic information provided to Parent (such third party and, to the extent such nonpublic information has not been previously so furnished)furnished to Parent, except that (x) the Company may redact names copies of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirementnonpublic information; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of one business day prior to entering into discussions or negotiations with such third party, the Company Novadigm gives Parent written notice that it has (or intends to) of the intention to enter into discussions or negotiations with such third party.
Appears in 2 contracts
Samples: Merger Agreement (Hewlett Packard Co), Merger Agreement (Novadigm Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a5.9(a), in the event that that, prior to approval of the Company Proposals by the required vote of the shareholders of Buyer, Buyer receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its Board board of Directors directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, Offer and the Company has complied in all material respects with all its obligations under Section 5.9(a) in connection with such Acquisition Proposal, it may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):actions:
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company its gives Parent Seller written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and limitations on in substantially the use and disclosure form of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement prior to taking any action under clause (1) above, and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent Seller (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and;
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company it gives Parent Seller written notice that it has (or intends to) of its intention to enter into discussions or negotiations with such third party; and
(iii) Approve or recommend, or publicly propose to approve or recommend, any Superior Offer and enter into any agreement with respect thereto; provided, in each such case, that Buyer has terminated this Agreement pursuant to Section 7.1(g). Nothing in this Section 5.9(c)(iii) shall relieve the Company from its obligation to comply with Section 5.9(c)(ii).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Peco Ii Inc), Asset Purchase Agreement (Peco Ii Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a7.3(a), in the event that the Company receives prior to the Purchase Time an unsolicited, bona fide written Acquisition Proposal from a third party that its did not result from a breach of this Section 7.3 and that the Company Board of Directors has in good faith concluded (concluded, after consultation with its outside legal counsel and its financial advisor), that such Acquisition Proposal is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company may then take the following actions (but only if (i1) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information Proposal and (2) engage in negotiations with the third party with respect to such Acquisition Proposal; provided that:
(i) the Company complies with all of the terms of this Section 7.3;
(ii) prior to furnishing any nonpublic information or entering into any negotiations or discussions with such third party, (1) the Company receives from the such third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, behalf in substantially the terms form of which are no less favorable to the Company than those contained in the Confidentiality Agreement and, in any event, no less restrictive to such third party than the Confidentiality Agreement is with respect to Parent and (B2) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnishedfurnished to Parent), except that ; and
(xiii) the Company may redact names of employees (other than officers) set forth Board reasonably determines in such information and (y) good faith, after consultation with outside legal counsel, that the Company shall not be required failure to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or enter into such discussion or negotiations with would reasonably be expected to result in a breach of the third party with respect Company Board’s fiduciary duties to the Acquisition Proposal, provided that within twenty-four hours stockholders of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third partyunder applicable law.
Appears in 2 contracts
Samples: Merger Agreement (Gsi Group Inc), Merger Agreement (Excel Technology Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives an unsolicited, a bona fide written Acquisition Proposal from a third party Third Party not solicited in violation of Section 5.3(a) that its Board of Directors has in good faith concluded concludes (after consultation with its outside legal counsel and its financial advisor), is, or would could reasonably be expected to lead to, a Superior Offer, the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would could reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish nonpublic non-public information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four 24 hours of furnishing any such nonpublic non-public information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic non-public information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s 's behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to within the same day as furnishing any such nonpublic non-public information to such third party, the Company furnishes such nonpublic non-public information to Parent (to the extent such nonpublic non-public information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and;
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four 24 hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third party; and
(iii) To the extent permitted pursuant to and in compliance with Article VII (including Section 7.3), enter into a binding written agreement concerning a transaction that constitutes a Superior Offer.
Appears in 1 contract
Samples: Merger Agreement (Avigen Inc \De)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in In the event that any Person submits to the Company receives (and does not withdraw) an unsolicited, written, bona fide written Acquisition Proposal from a third party that its the Company Board of Directors has reasonably concludes in good faith concluded (after consultation with receipt of advice of its outside legal counsel and its a financial advisor), advisor of national standing) is, or would is reasonably be expected likely to lead tobecome, a Superior Offer, then notwithstanding Section 5.3(a), the Company may then take may, so long as the following actions (but only if Company Shareholder Approval has not yet been obtained, (i) enter into discussions with such Person regarding such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) Proposal, and (ii) the Board of Directors of deliver or make available to such Person nonpublic information regarding the Company concludes and its Subsidiaries, provided, in good faith, after consultation with outside legal counselevery case, that the failure to do so would reasonably be expected to result in a breach Company, its Subsidiaries and the Company Representatives comply with each of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that following: (A) neither the Company, any of its Subsidiaries nor any Company Representative shall have violated in any material respect any of the restrictions set forth in this Section 5.3, (1B) within twentythe Company first shall have provided Parent with written notice of the identity of such Person and all of the material terms and conditions of such Acquisition Proposal and of the Company’s intention to take such actions, (C) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement (as defined in Section 5.5), which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under the Agreement and shall require such Person to agree to customary non-four hours solicitation provisions covering at least 12 months from execution of furnishing such confidentiality agreement, and (D) prior to or contemporaneously with delivering or making available any such nonpublic information to such partyPerson, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes shall deliver such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) delivered by the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third partyParent).
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that HP or Compaq, as the Company case may be, receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior OfferOffer (as defined in Section 5.3(g)), the Company it may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that its Board of Directors of the Company concludes in good faith, after consultation with following the receipt of advice of its outside legal counsel, that the failure to do so would is reasonably be expected likely to result in a breach of its fiduciary obligations under applicable Legal Requirementslaw):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided PROVIDED that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, its gives the Company gives Parent other party hereto written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 5.4) and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent the other party hereto (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided PROVIDED that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, it gives the Company gives Parent other party hereto written notice that it has (or intends to) of the its intention to enter into discussions or negotiations with such third party.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Compaq Computer Corp)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a6.1(a), prior to the acceptance for payment and payment for Shares by the Merger Sub in the Offer, in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior OfferOffer (as defined in Section 6.1(g)(ii)), the Company it may then take the following actions (but only (A) if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that its Board of Directors of the Company concludes in good faith, after following consultation with its outside legal counsel, that it is reasonably likely that the failure to do so would result in a breach of its fiduciary obligations under applicable Legal Requirements and (B) after the Company has given written notice ("Superior Offer Notice") to the Parent that expressly states (1) that it has received a bona fide, written Acquisition Proposal from a third party that the Company's Board of Directors has in good faith concluded (following consultation with its outside legal counsel and its financial advisor), is, or is reasonably likely to result in, a Superior Offer; (2) that the Company's Board of Directors has concluded in good faith, following consultation with its outside legal counsel, that the failure to do so take such action would be reasonably be expected likely to result in a breach of its fiduciary obligations under applicable Legal Requirements; (3) the identity of the third party making such Acquisition Proposal and the material terms and conditions of such Acquisition Proposal; and (4) the nature of the action that the Company intends to take):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 6.2(a)) and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to the Parent (to the extent such nonpublic information has not been previously so furnishedmade available to Parent), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and;
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal; and
(iii) Subject to compliance with Section 6.1(d), provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations definitive agreements with respect to such third partyAcquisition Proposal and terminate this Agreement pursuant to Section 8.1(h) hereof.
Appears in 1 contract
Samples: Merger Agreement (Cgi Group Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in In the event that any Person submits to the Company receives (and does not withdraw) an unsolicited, written, bona fide written Acquisition Proposal from a third party that its the Company Board of Directors has reasonably concludes in good faith concluded (after consultation with receipt of advice of its outside legal counsel and its in consultation with a financial advisor), advisor of national standing) is, or would reasonably be expected likely to lead tobecome, a Superior Offer, then notwithstanding Section 5.3(a), the Company may then take may, so long as the following actions (but only if Company Stockholder Approval has not yet been obtained, (i) enter into discussions with such Person regarding such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) Proposal, and (ii) deliver or make available to such Person nonpublic information regarding the Board of Directors Company and its Subsidiaries, provided, in every case, that the Company, its Subsidiaries and the Company Representatives comply with each of the following: (A) neither the Company, any of its Subsidiaries nor any Company concludes Representative shall have violated any of the restrictions set forth in this Section 5.3, (B) the Company Board first shall have concluded in good faith, after consultation with receipt of advice of its outside legal counsel, that such action is required in order for the failure Company Board to do so would reasonably be expected to result in a breach of comply with its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements):
, (iC) Furnish nonpublic information to the third party making Company first shall have provided Acquirer with written notice of the identity of such Person and all of the material terms and conditions of such Acquisition ProposalProposal and of the Company’s intention to take such actions, provided (D) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement (as defined in Section 5.5), it being understood that such confidentiality agreement shall not include any provision calling for any exclusive right to negotiate with such Person or having the purported effect of restricting it from satisfying its obligations under this Agreement, (AE) the Company first shall have given Acquirer at least two Business Days advance notice of its intent to take such actions, specifying what actions it intends to take, and (1F) within twenty-four hours of furnishing prior to or contemporaneously with delivering or making available any such nonpublic information to such partyPerson, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any shall deliver such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent Acquirer (to the extent such nonpublic information has not been previously so furnished), except that (x) delivered by the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; Acquirer and
(ii) Engage in discussions or negotiations with the third party with respect , to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third partyextent previously delivered, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with delivers to Acquirer a complete list identifying all such third partynonpublic information delivered to such Person).
Appears in 1 contract
Samples: Merger Agreement (Netsolve Inc)
Superior Offers. (i) Notwithstanding anything to the contrary contained in this Section 5.3(a)6.1, if at any time prior to the acceptance for payment of Company Shares in the event that Offer, the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party (under circumstances in which the Company has complied in all material respects with its obligations under this Section 6.1(a) with respect to such Acquisition Proposal) that its Board of Directors has in good faith concluded (after consultation at a meeting of such Board at which it consults prior to such determination with its outside legal counsel and its financial advisor), ) is, or would is reasonably be expected likely to lead toresult in, a Superior OfferOffer (as defined in Section 6.1(f)), the Company it (and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney, consultant, accountant or other agents retained by it or any of its Subsidiaries)) may then take any of the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):actions:
(i1) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of prior to furnishing any such nonpublic information to such party, the Company (A) (1) gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure (a copy of information furnished which shall be provided to such third party on the Company’s behalfParent), the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 6.5(a)) and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that ; or
(x2) Grant a waiver or release with respect to the third party making the Acquisition Proposal and its affiliates under a standstill or similar agreement to allow the third party making such Acquisition Proposal to engage in negotiations with the Company may redact names with respect to such proposal (but not allow such third party to acquire any class of employees (other than officers) set forth in such information and (y) equity securities of the Company shall not be required to provide such information if doing so would be inconsistent with or any applicable antitrust Legal Requirementof its Subsidiaries); andor
(ii3) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company it gives Parent written notice that it has (or intends to) of the its intention to enter into discussions or negotiations with such third party.
(ii) In each case referred to in the foregoing clauses (1) through (3) the Company may only take such action if, prior to taking such action, the Company Board determines in good faith (at a meeting of such Board), after consultation with outside legal counsel to the Company, that its failure to take such action would be inconsistent with fulfilling its fiduciary duties under applicable law and complies with the material provisions of this Section 6.1 with respect to such Acquisition Proposal.
Appears in 1 contract
Samples: Merger Agreement (Acxiom Corp)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives an unsolicited, a bona fide written Acquisition Proposal from a third party Third Party not solicited in violation of Section 5.3(a) that its Board of Directors has in good faith concluded concludes (after consultation with its outside legal counsel and its financial advisor), is, or would could reasonably be expected to lead to, a Superior Offer, the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would could reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish nonpublic non-public information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four 24 hours of furnishing any such nonpublic non-public information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic non-public information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to within the same day as furnishing any such nonpublic non-public information to such third party, the Company furnishes such nonpublic non-public information to Parent (to the extent such nonpublic non-public information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and;
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four 24 hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third party; and
(iii) To the extent permitted pursuant to and in compliance with Article VII (including Section 7.3), enter into a binding written agreement concerning a transaction that constitutes a Superior Offer.
Appears in 1 contract
Samples: Merger Agreement (Medicinova Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that that, prior to the adoption and approval of this Agreement and the Merger by the required vote of the stockholders of the Company, the Company receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its Board of Directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, Offer (as defined in Section 5.3(f)) and the Company has complied in full with all its obligations under Section 5.3(a) in connection with such Acquisition Proposal, it may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):actions:
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company it gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and limitations on in substantially the use and disclosure form of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement (as defined in Section 5.4) prior to taking any action under clause (1) above and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and;
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company it gives Parent oral and written notice that it has (or intends to) of the its intention to enter into discussions or negotiations with such third party; and
(iii) Approve or recommend, or propose to approve or recommend, any Superior Offer and enter into any agreement with respect thereto; provided, in each such case, that the Company has terminated this Agreement pursuant to Section 7.1(g). Nothing in this Section 5.3(c) shall relieve the Company from its obligation to comply with Section 5.3(b).
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives prior to the adoption of this Agreement by the stockholders of the Company in accordance with applicable Law an unsolicited, bona fide written Acquisition Proposal from a third party that its did not result from a breach of this Section 5.3 and that the Company’s Board of Directors has in good faith concluded (concluded, after consultation with its outside legal counsel and its financial advisor), that such Acquisition Table of Contents Proposal is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company may then take (1) furnish non-public information to the following actions third party making such Acquisition Proposal and (but only if 2) engage in negotiations with the third party with respect to such Acquisition Proposal; provided, however, that:
(i) the Company complies with all of the terms of this Section 5.3;
(ii) prior to furnishing any non-public information or entering into any negotiations or discussions with such Acquisition Proposal did not arise third party, (directly or indirectly1) the Company receives from a breach such third party an executed confidentiality agreement containing customary limitations on the use and disclosure of Section 5.3(aall non-public written and oral information furnished to such third party on the Company’s behalf in substantially the form of the Confidentiality Agreement and, in any event, no less restrictive to such third party than the Confidentiality Agreement is with respect to Parent (including with respect to “standstill” and “non-solicitation” provisions) and (ii2) contemporaneously with furnishing any such non-public information to such third party, the Company furnishes such non-public information to Parent (to the extent such non-public information has not been previously so furnished); and
(iii) the Board of Directors of the Company concludes reasonably determines in good faith, after consultation with outside legal counsel, that the failure to do so provide such information or enter into such discussion or negotiations would be reasonably be expected likely to result in a breach of its the Board of Directors’ fiduciary obligations duties to the stockholders of the Company under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third partyLaw.
Appears in 1 contract
Samples: Merger Agreement (Cybersource Corp)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a6.1(a), prior to the acceptance for payment and payment for Shares by the Merger Sub in the Offer, in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior OfferOffer (as defined in Section 6.1(g)(ii)), the Company it may then take the following actions (but only (A) if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that its Board of Directors of the Company concludes in good faith, after following consultation with its outside legal counsel, that it is reasonably likely that the failure to do so would result in a breach of its fiduciary obligations under applicable Legal Requirements and (B) after the Company has given written notice (“Superior Offer Notice”) to the Parent that expressly states (1) that it has received a bona fide, written Acquisition Proposal from a third party that the Company’s Board of Directors has in good faith concluded (following consultation with its outside legal counsel and its financial advisor), is, or is reasonably likely to result in, a Superior Offer; (2) that the Company’s Board of Directors has concluded in good faith, following consultation with its outside legal counsel, that the failure to do so take such action would be reasonably be expected likely to result in a breach of its fiduciary obligations under applicable Legal Requirements; (3) the identity of the third party making such Acquisition Proposal and the material terms and conditions of such Acquisition Proposal; and (4) the nature of the action that the Company intends to take):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 6.2(a)) and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to the Parent (to the extent such nonpublic information has not been previously so furnishedmade available to Parent), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and;
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal; and
(iii) Subject to compliance with Section 6.1(d), provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations definitive agreements with respect to such third partyAcquisition Proposal and terminate this Agreement pursuant to Section 8.1(h) hereof.
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a6.3(a), in the event that the Company receives prior to the approval of this Agreement by the shareholders of the Company in accordance with applicable Law an unsolicited, bona fide written Acquisition Proposal from a third party that its Board did not result from a breach of Directors this Section 6.3 and that the Company's board of directors has in good faith concluded (concluded, after consultation with its outside legal counsel and its financial advisor), that such Acquisition Proposal is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company may then take the following actions (but only if (i1) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information Proposal and (2) engage in negotiations with the third party with respect to such Acquisition Proposal; provided that:
(i) the Company complies with all of the terms of this Section 6.3;
(ii) prior to furnishing any nonpublic information or entering into any negotiations or discussions with such third party, (1) the Company receives from the such third party an executed confidentiality and standstill agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, 's behalf in substantially the terms form of which are no less favorable to the Company than those contained in the Confidentiality Agreement and, in any event, no less restrictive to such third party than the Confidentiality Agreement is with respect to Parent, and (B2) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that ; and
(xiii) the Company may redact names board of employees (other than officers) set forth in such information and (y) directors of the Company shall not be required reasonably determines in good faith, after consultation with outside legal counsel, that the failure to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or enter into such discussion or negotiations with would result in a breach of the third party with respect board of directors' fiduciary duties to the Acquisition Proposal, provided that within twenty-four hours shareholders of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third partyunder applicable Law.
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company or any of its Representatives receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisoradvisor that is reflected in the minutes of the Company), contains financial terms that are superior to the terms of this Agreement and otherwise is, or would is reasonably be expected likely to lead to, a Superior OfferOffer (as defined in Section 5.3(g)(ii)), the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that its Board of Directors of the Company concludes in good faith, after following consultation with its reputable outside legal counselcounsel experienced in such matters (including DLA Piper US LLP) and its reputable outside financial advisor experienced in such matters (including ThinkEquity) that is reflected in the minutes of the Company, that the failure to do so would be reasonably be expected likely to result in constitute a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish is furnishing such nonpublic information and information, (2B) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 5.4(a)), and (BC) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) of its intention to enter into discussions or negotiations with such third party.
Appears in 1 contract
Samples: Merger Agreement (Vantagemed Corp)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that Parent or the Company Company, as the case may be, receives an unsolicited, bona fide written Acquisition Proposal from a third party that its the Board of Directors has of Parent or the Company, as the case may be, determines in good faith concluded (after consultation with its outside legal counsel and its a financial advisoradvisor of nationally recognized reputation) constitutes or is reasonably likely to lead to a Superior Offer (as defined in Section 5.3(g) with respect to itself), is, or would reasonably be expected to lead to, a Superior Offer, the Company it may then take the following actions (but only if (i) if such party has not breached Section 5.3(a) with respect to such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that its Board of Directors of the Company concludes believes in good faith, after following consultation with its outside legal counsel, that the failure to do so would take any such action is reasonably be expected likely to result in a breach of its fiduciary obligations under applicable Legal Requirementslaw):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (i) (A) at least one (1) within twenty-four hours of business day prior to furnishing any such nonpublic information to such party, it gives the Company gives Parent other party hereto written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2B) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalfagreement, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 5.4), and (Bii) contemporaneously substantially concurrently with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent the other party hereto (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage Notwithstanding anything in Section 5.3(a) to the contrary, engage in discussions or negotiations with the third party with respect to the such Acquisition Proposal, provided that within twentyat least forty-four hours of eight (48) hours' prior to entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third party.third
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Virologic Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a5.4(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party after the date hereof that its the Board of Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisor), advisors) is, or would be reasonably be expected likely to lead to, a Superior Offer, the Company may then take any or all of the following actions (but only (1) if (i) the Company has not materially breached any of the provisions set forth in this Section 5.4 in connection with such Acquisition Proposal did not arise Proposal, (directly or indirectly2) from a breach of Section 5.3(a) and (ii) to the extent the Board of Directors of the Company concludes in good faith, faith (after consultation with its outside legal counsel, counsel and its financial advisors) that the failure to do so would be reasonably be expected to result in a breach of be inconsistent with its fiduciary obligations duties under applicable Legal Requirements, and (3) prior to the receipt of the Company Shareholder Approval):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal; provided, provided that (A) (1) within at least twenty-four (24) hours of prior to furnishing any such nonpublic non-public information to such party, the Company it gives Parent Globe written notice that it has (or intends to) of its intention to furnish such nonpublic information and the identity of the Person or group making any such Acquisition Proposal, (2B) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than provisions at least as restrictive as those contained in the Confidentiality Agreement (excluding any standstill provisions), provided that such agreement shall not contain terms which prevent the Company from complying with its obligations under this Agreement (including this Section 5.4), and (BC) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent Globe (to the extent such nonpublic information has not been previously so furnishedfurnished or made available), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and;
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal; provided, provided that within at least twenty-four (24) hours of prior to entering into discussions or negotiations with such third party, the Company it gives Parent Globe written notice that it has (or intends to) of the Company’s intention to enter into discussions or negotiations with such third party; and
(iii) Seek confirmation from the SIC that the Singapore Code and its requirements would not apply to the Acquisition Proposal.
Appears in 1 contract
Samples: Implementation Agreement (SunEdison Semiconductor LTD)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a)this Agreement, in the event that the Company Liquid receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or would reasonably be expected to lead to, a Superior OfferOffer (as defined in Section 5.3(e)) before the date of the Stockholders' Meeting, the Company it may then take any or all of the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that Liquid's Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to do so would reasonably be expected to result in a breach inconsistent with the proper discharge of its fiduciary obligations under applicable Legal Requirementsduties):
(i) Furnish furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company its gives Parent Alliance written notice that of its intention to furnish nonpublic information; (B) it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 5.4) and customary standstill provisions, and (BC) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent Alliance (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage withhold, withdraw, amend or modify its recommendation in discussions favor of the Offer and the Merger, and, in the case of a Superior Offer that is a tender or negotiations with exchange offer made directly to its stockholders, may recommend that its stockholders accept the third party with respect tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a "CHANGE OF RECOMMENDATION") or terminate this Agreement to accept such Superior Offer as provided in Section 7.1(g), if all of the Acquisition Proposal, following are met:
(A) the Superior Offer has not been withdrawn;
(B) its Stockholders' Meeting has not occurred;
(C) it shall have provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent to Alliance (i) written notice which shall state expressly that it has received a Superior Offer, the material terms and conditions of the Superior Offer and the identity of the Person or group making the Superior Offer and that it intends to effect a Change of Recommendation or termination of this Agreement to accept such Superior Offer as provided in Section 7.1(g), and (ii) a copy of all written materials provided in connection with the Superior Offer (such notice and materials to be delivered to Alliance at least five (5) business days prior to taking such action which constitutes a Change of Recommendation or intends totermination of this Agreement to accept such Superior Offer as provided in Section 7.1(g)); and
(D) enter into discussions it shall not have breached any of the provisions set forth in Section 5.2 or negotiations with such third partySection 5.3.
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a)SECTION 5.3, in the event that the Company receives prior to the adoption of this Agreement by the stockholders of the Company in accordance with applicable law an unsolicited, bona fide written Acquisition Proposal from a third party that its did not result from a material breach of this SECTION 5.3 and that the Company's Board of Directors has in good faith concluded (concluded, after consultation with its outside legal counsel and its financial advisor), that such Acquisition Proposal is, or would could reasonably be expected to lead toresult in, a Superior Offer, the Company may then take the following actions (but only if (i1) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information Proposal and (2) engage in negotiations (including exchanging draft agreements) with the third party and its representatives with respect to such Acquisition Proposal; provided, however, that:
(i) the Company complies with all of the terms of this SECTION 5.3 in all material respects;
(ii) prior to furnishing any nonpublic information or entering into any negotiations or discussions with such third party, (1) the Company receives from the such third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf's behalf on terms no less restrictive to such third party than the Confidentiality Agreement is with respect to Parent (or its affiliates) (except for Paragraph 7 of the Confidentiality Agreement); provided that in the event that any confidentiality agreement with a third party that is executed pursuant to this SECTION 5.3 (c)(ii) does not contain a standstill, the terms of which are no less favorable to the Company than those standstill provisions contained in the Confidentiality Agreement shall terminate, and (B2) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and;
(iiiii) Engage prior to engaging in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) of the Company's intention to enter into discussions or negotiations with such third party; and
(iv) the Board of Directors of the Company reasonably determines in good faith, after consultation with outside legal counsel, that the failure to provide such information or enter into such discussion or negotiations could reasonably be expected to result in a breach of the Board of Directors' fiduciary duties to the stockholders of the Company under applicable law.
Appears in 1 contract
Samples: Merger Agreement (Loudeye Corp)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that that, prior to the adoption and approval of this Agreement and the Merger by the required vote of the stockholders of the Company, the Company receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its Board of Directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, Offer (as defined in Section 5.3(f)) and the Company has complied in full with all its obligations under Section 5.3(a) in connection with such Acquisition Proposal, it may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):actions:
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company it gives Parent CEP written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and limitations on in substantially the use and disclosure form of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement (as defined in Section 5.4) prior to taking any action under clause (1) above and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent CEP (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and;
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company it gives Parent CEP oral and written notice that it has (or intends to) of the its intention to enter into discussions or negotiations with such third party; and
(iii) Approve or recommend, or propose to approve or recommend, any Superior Offer and enter into any agreement with respect thereto; provided, in each such case, that the Company has terminated this Agreement pursuant to Section 7.1(g). Nothing in this Section 5.3(c) shall relieve the Company from its obligation to comply with Section 5.3(b).
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives prior to the adoption of this Agreement by the stockholders of the Company in accordance with applicable law an unsolicited, bona fide written Acquisition Proposal from a third party that its did not result from a breach of this Section 5.3 and that the Company’s Board of Directors has in good faith concluded (concluded, after consultation with its outside legal counsel and its financial advisor), that such Acquisition Proposal is, or would is reasonably be expected possible to lead toresult in, a Superior Offer, the Company may then take the following actions (but only if (i1) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information Proposal and (2) engage in negotiations with the third party with respect to such Acquisition Proposal; provided, however, that:
(i) the Company complies with all of the terms of this Section 5.3;
(ii) prior to furnishing any nonpublic information or entering into any negotiations or discussions with such third party, (1) the Company receives from the such third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf; provided that in the event that any confidentiality agreement with a third party which is executed pursuant to this Section 5.3(c)(ii) does not contain a standstill, the terms of which are no less favorable to the Company than those standstill provisions contained in the Confidentiality Agreement shall terminate and (B2) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that ; and
(xiii) the Company may redact names Board of employees (other than officers) set forth in such information and (y) Directors of the Company shall not be required reasonably determines in good faith, after consultation with outside legal counsel, that the failure to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or enter into such discussion or negotiations with would reasonably be expected to result in a breach of the third party with respect Board of Directors’ fiduciary duties to the Acquisition Proposal, provided that within twenty-four hours stockholders of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third partyunder applicable law.
Appears in 1 contract
Samples: Merger Agreement (Intellisync Corp)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel (which may be O’Melveny & Xxxxx LLP) and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that the Board of Directors of the Company concludes in good faith, after consultation with following the receipt of advice of the Company’s outside legal counsel, that the failure to do so would is reasonably be expected likely to result in a breach of its fiduciary obligations under applicable Legal Requirementslaw):
(i) Request information from the Person making such Acquisition Proposal to the extent required for the Board of Directors of the Company to become appropriately informed about the Acquisition Proposal that has been made and the Person that made it;
(ii) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (Aa) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement and (Bb) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(iiiii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) of the Company’s intention to enter into discussions or negotiations with such third party.
Appears in 1 contract
Samples: Merger Agreement (Tarantella Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that that, prior to the adoption and approval of this Agreement and the Merger by the required vote of the stockholders of the Company, the Company receives an unsolicited, bona fide written Acquisition Proposal with respect to itself from a third party that its Board of Directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, Offer (as defined in Section 5.3(f)) and the Company has complied in full with all its obligations under Section 5.3(a) in connection with such Acquisition Proposal, it may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):actions:
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that PROVIDED THAT (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company it gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and limitations on in substantially the use and disclosure form of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement (as defined in Section 5.4) prior to taking any action under clause (1) above and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and;
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of PROVIDED THAT concurrently with entering into discussions or negotiations with such third party, the Company it gives Parent oral and written notice that it has (or intends to) of the its intention to enter into discussions or negotiations with such third party; and
(iii) Approve or recommend, or propose to approve or recommend, any Superior Offer and enter into any agreement with respect thereto; provided, in each such case, that the Company has terminated this Agreement pursuant to Section 7.1(g). Nothing in this Section 5.3(c) shall relieve the Company from its obligation to comply with Section 5.3(b).
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives prior to the adoption of this Agreement by the stockholders of the Company in accordance with applicable Law an unsolicited, bona fide written Acquisition Proposal from a third party that its did not result from a breach of this Section 5.3 and that the Company’s Board of Directors has in good faith concluded (concluded, after consultation with its outside legal counsel and its financial advisor), that such Acquisition Proposal is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company may then take (1) furnish non-public information to the following actions third party making such Acquisition Proposal and (but only if 2) engage in negotiations with the third party with respect to such Acquisition Proposal; provided, however, that:
(i) the Company complies with all of the terms of this Section 5.3;
(ii) prior to furnishing any non-public information or entering into any negotiations or discussions with such Acquisition Proposal did not arise third party, (directly or indirectly1) the Company receives from a breach such third party an executed confidentiality agreement containing customary limitations on the use and disclosure of Section 5.3(aall non-public written and oral information furnished to such third party on the Company’s behalf in substantially the form of the Confidentiality Agreement and, in any event, no less restrictive to such third party than the Confidentiality Agreement is with respect to Parent (including with respect to “standstill” and “non-solicitation” provisions) and (ii2) contemporaneously with furnishing any such non-public information to such third party, the Company furnishes such non-public information to Parent (to the extent such non-public information has not been previously so furnished); and
(iii) the Board of Directors of the Company concludes reasonably determines in good faith, after consultation with outside legal counsel, that the failure to do so provide such information or enter into such discussion or negotiations would be reasonably be expected likely to result in a breach of its the Board of Directors’ fiduciary obligations duties to the stockholders of the Company under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third partyLaw.
Appears in 1 contract
Samples: Merger Agreement (Visa Inc.)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a6.5(a), in the event that prior to the time that the Required Company Stockholder Approval has been obtained, Company or any of its subsidiaries receives an unsolicited, a bona fide written Acquisition Proposal from a third party that its is not solicited or otherwise procured in violation of Section 6.5(a) that the Company Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), ) is, or would is reasonably be expected likely to lead tobecome, a Superior OfferOffer (as defined in Section 6.5(f)(ii)), the Company may then take the following actions (but only if and to the extent that (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company Board concludes in good faith, after consultation with following the receipt of advice of its outside legal counsel, that such action is required in order for the failure Company Board to do so would reasonably be expected to result in a breach of comply with its fiduciary obligations duties to Company’s stockholders under applicable Legal Requirements):, (ii) Company shall have given Acquiror at least one business day’s prior written notice of its intention to take any of the following actions, and (iii) Company shall not have breached in any material respect any of the provisions of this Section 6.5) in connection with such Acquisition Proposal:
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any Company shall have first received from such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement and shall include customary employee non-solicitation provisions binding such third party for a period of no less than twelve (12) months from the date of such confidentiality agreement; and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent Acquiror (to the extent such nonpublic information has not been previously so furnishedfurnished to Acquiror), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the such third party with respect to the such Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third party.
Appears in 1 contract
Samples: Merger Agreement (Insightful Corp)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a) or Section 5.3(b), at any time prior to receipt of the Requisite Stockholder Approval, in the event that the Company receives (x) an unsolicited, bona fide written Acquisition Proposal from a third party that its did not result from a breach of Section 5.3(a) or (y) a bona fide written Acquisition proposal from a Solicited Person that did not result from a breach of Section 5.3(b) (or a breach of Section 5.3(a) after the Solicitation Period End Date), and the Company Board of Directors has determines in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), ) that such Acquisition Proposal is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):actions:
(i) Furnish nonpublic non-public information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of one business day prior to furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Acceptable Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes Parent a list of such nonpublic information provided to Parent (such third party and, to the extent such nonpublic information has not been previously so furnished)furnished to Parent, except that (x) the Company may redact names copies of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirementnonpublic information; and
(ii) Engage in discussions or and negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of one business day prior to entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) of the intention to enter into discussions or negotiations with such third party.
Appears in 1 contract
Samples: Merger Agreement (Neoware Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a6.2(b)(i), in the event that the Company receives an unsolicited, bona fide written offer for the acquisition of 100% of the equity or assets of the Company (an “Acquisition Proposal Proposal”) from a third party that its the Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), ) is, or would is reasonably be expected likely to lead toresult in, a Superior OfferOffer (as defined below), the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) provided that the Board of Directors of the Company concludes in good faith, faith (after consultation with their outside legal counsel, advisors) that the failure to do so would reasonably could be expected to result in a breach of its inconsistent with their fiduciary obligations duties under applicable Legal Requirements):law:
(i1) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (Aa) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company gives Parent the Purchaser written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement behalf and (Bb) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent the Purchaser (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and.
(ii2) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company gives Parent the Purchaser written notice that it has (or intends to) of the Company’s intention to enter into discussions or negotiations with such third party and during such negotiations provides Purchaser with copies of all written proposals delivered by such third party, keeps Purchaser updated regarding negotiations and discussions in a reasonably timely manner and provides the Purchaser the opportunity to fully participate as an observer in all such negotiations and discussions.
(3) In the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer.
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a4.2(a), in the event that if the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its includes an indication of value in excess of the Merger Consideration and that the Company Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), is, is from a person reasonably capable of consummating such Acquisition Proposal and is or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company it may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):actions:
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, request or inquiry provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company it gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are (x) shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations hereunder, and (y) shall, in all material respects, be no less favorable to the Company than those contained in the Confidentiality Agreement between the Company and Parent, dated as of November 2002, as amended on December 19, 2002 (the “Confidentiality Agreement”) and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company it gives Parent written notice that it has (or intends to) of its intention to enter into discussions or negotiations with such third party.
Appears in 1 contract
Samples: Merger Agreement (Yahoo Inc)
Superior Offers. Notwithstanding anything contained herein to the contrary contained in Section 5.3(a)contrary, prior to such time as the Required Stockholder Approvals have been obtained, the Company may, in the event that the Company receives an unsolicited, response to a Superior Offer or in response to a bona fide written Acquisition Proposal from a third party that its the Company’s Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), ) is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company may then take the following actions (but only if (i) such Acquisition Proposal in each case which did not arise (directly or indirectly) result from a breach of Section 5.3(a) and provided the Company shall have given Parent the notification provided for in Section 5.3(b) and that at least three full business days have elapsed since the receipt by Parent of such notification (iiit being understood that if Parent receives such notification at 3:00 p.m. EST on a particular business Monday (by way of example), the third business day shall be deemed to have elapsed at 3:00 p.m. EST on Thursday, assuming that Tuesday, Wednesday and Thursday are also business days), furnish information concerning its business, properties or assets to such Person (provided that the Company (A) has previously or concurrently furnished such information to Parent and (B) shall furnish such information pursuant to a confidentiality agreement which is at least as favorable to Parent as the Confidentiality Agreement), and may participate in discussions and negotiations with such Person, making such Acquisition Proposal or Superior Offer if, but only if, in the good faith judgment of the Company’s Board of Directors (following the receipt of the advice of its outside legal counsel), the failure to provide such information or access or to engage in such discussions or negotiations would be reasonably likely to result in a violation of its fiduciary duties under applicable law. For the purposes of this Agreement, a “Superior Offer” means any bona fide, unsolicited, written proposal made by a third party for an Alternative Transaction, the terms of which the Board of Directors of the Company concludes determines in its good faith, faith judgment (after consultation with outside legal counsel, that receiving the failure to do so would reasonably be expected to result in a breach advice of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish nonpublic information to legal and financial advisors), taking into account all of the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on conditions of such proposal and this Agreement (including the use and disclosure form of information furnished consideration to such third party on be received by the Company’s behalfstockholders, any termination fee or expense reimbursement payable under this Agreement, any conditions to the consummation thereof and the likelihood of the Alternative Transaction being consummated and including any proposal by Parent to amend the terms of which are no less this Agreement), to be more favorable to the Company Company’s stockholders than those contained in the Confidentiality Agreement Merger, to have a reasonable likelihood of closing, and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third partyfor which financing, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished)required, except that (x) is then committed or which, in the Company may redact names good faith judgment of employees (other than officers) the Board of Directors of the Company, is reasonably capable of being, and likely to be, obtained on the terms set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third partyproposal.
Appears in 1 contract
Samples: Merger Agreement (Green Mountain Coffee Roasters Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that LTX or Credence, as the Company case may be, receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisor), ) is, or would is reasonably be expected likely to lead to, a Superior OfferOffer (as defined in Section 5.3(g)(ii)), LTX or Credence, as the Company case may be, may then take any or all of the following actions (but only (1) if such party has not materially breached Section 5.3, (i2) such Acquisition Proposal did party’s Stockholders’ Meeting has not arise (directly or indirectly) from a breach of Section 5.3(a) occurred and (ii3) to the extent the Board of Directors of the Company such party concludes in good faith, faith (after consultation with its outside legal counsel, ) that the failure to do so would be reasonably be expected likely to result in a breach of its fiduciary obligations duties under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of at least two business days prior to furnishing any such nonpublic information to such party, it gives the Company gives Parent other party hereto written notice that it has (or intends to) of its intention to furnish such nonpublic information and the identity of the Person or group making any such Acquisition Proposal and a copy of all written and electronic materials provided in connection with such Acquisition Proposal, (2B) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the CompanyCredence’s or LTX’s behalf, as the case may be, the terms of which (including standstill terms) are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 5.4(a)), provided that such agreement shall not contain terms which prevent Credence or LTX, as the case may be, from complying with its obligations under this Section 5.3, and (BC) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent the other party hereto (to the extent such nonpublic information has not been previously so furnishedfurnished or made available), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of at least two business days prior to entering into discussions or negotiations with such third party, it gives the Company gives Parent other party hereto written notice that it has (or intends to) of such party’s intention to enter into discussions or negotiations with such third party.
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in In the event that any person submits to the Company receives (and does not withdraw) an unsolicited, written, bona fide written Acquisition Proposal from a third party that its the Company Board of Directors has reasonably concludes in good faith concluded (after consultation with its outside legal counsel and its financial advisor), ) is, or would reasonably be expected is likely to lead tobecome, a Superior Offer, then notwithstanding Section 6.6(a), the Company may then take may, so long as the following actions (but only if Company Stockholder Approval has not yet been obtained, (i) enter into discussions with such person regarding such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) deliver or make available to such person non-public information regarding the Board of Directors Company and the Company Subsidiaries; provided (A) neither the Company, any Company Subsidiary nor any Representative of the Company concludes shall have taken any of the actions described in any of clauses (i) through (viii) of Section 6.6(a), and the Company shall have complied with the requirements of Section 6.6(b), (B) the Company Board first shall have concluded in good faith, after consultation with its outside legal counsel, that such action is required in order for the failure Company Board to do so would reasonably be expected to result in a breach of comply with its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements):
Laws, (iC) Furnish nonpublic information at least 48 hours (which shall not include hours between 12:00 am and 11:59 pm on any non-business day) shall have elapsed since the Company’s written notice to Parent (which shall be given following the Company Board meeting referred to in Section 6.6(b) above) that it intends to take actions in response to such Superior Offer (specifying the action to be taken), (D) the Company first shall have received from such person an executed confidentiality agreement containing terms at least as restrictive with regard to the third party Company’s confidential information as the Confidentiality Agreement, it being understood that such confidentiality agreement shall not include any provision for any exclusive right to negotiate with such person or having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement, and (D) prior to or contemporaneously with delivering or making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing available any such nonpublic information to such partyperson, the Company gives Parent written notice that it has (or intends to) furnish shall deliver such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic non-public information to Parent (to the extent such nonpublic non-public information has not been previously so furnished), except that (x) delivered or Made Available by the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third partyParent).
Appears in 1 contract
Samples: Merger Agreement (Jamdat Mobile Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a4.2(a), in the event that if the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its includes an indication of value in excess of the Merger Consideration and that the Company Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), is, is from a person reasonably capable of consummating such Acquisition Proposal and is or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company it may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):actions:
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, request or inquiry provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company it gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are (x) shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations hereunder, and (y) shall, in all material respects, be no less favorable to the Company than those contained in the Confidentiality Agreement between the Company and Parent, dated as of November 2002, as amended on December 19, 2002 (the "CONFIDENTIALITY AGREEMENT") and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company it gives Parent written notice that it has (or intends to) of its intention to enter into discussions or negotiations with such third party.
Appears in 1 contract
Samples: Merger Agreement (Inktomi Corp)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a)this Agreement, in the event that the Company Liquid receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or would reasonably be expected to lead to, a Superior OfferOffer (as defined in Section 5.3(e)) before the date of the Liquid Stockholders' Meeting, the Company it may then take any or all of the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that Liquid's Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to do so would reasonably be expected to result in a breach inconsistent with the proper discharge of its fiduciary obligations under applicable Legal Requirementsduties):
(i) Furnish furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company its gives Parent Alliance written notice that of its intention to furnish nonpublic information; (B) it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 5.4) and customary standstill provisions, and (BC) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent Alliance (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage withhold, withdraw, amend or modify its recommendation in discussions favor of the Merger, and, in the case of a Superior Offer that is a tender or negotiations with exchange offer made directly to its stockholders, may recommend that its stockholders accept the third party with respect tender or exchange offer (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a "Change of Recommendation") or terminate this Agreement to accept such Superior Offer as provided in Section 7.1(g), if all of the Acquisition Proposal, following are met:
(A) the Superior Offer has not been withdrawn;
(B) its Stockholders' Meeting has not occurred;
(C) it shall have provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent to Alliance (i) written notice which shall state expressly that it has received a Superior Offer, the material terms and conditions of the Superior Offer and the identity of the Person or group making the Superior Offer and that it intends to effect a Change of Recommendation or termination of this Agreement to accept such Superior Offer as provided in Section 7.1(g), and (ii) a copy of all written materials provided in connection with the Superior Offer (such notice and materials to be delivered to Alliance at least five (5) business days prior to taking such action which constitutes a Change of Recommendation or intends totermination of this Agreement to accept such Superior Offer as provided in Section 7.1(g)); and
(D) enter into discussions it shall not have breached any of the provisions set forth in Section 5.2 or negotiations with such third partySection 5.3.
Appears in 1 contract
Samples: Merger Agreement (Liquid Audio Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a7.3(a), in the event that that, prior to the Company delivery of the Voting Agreements pursuant to Section 7.10 hereof, Parent receives an unsolicited, bona fide written Parent Acquisition Proposal with respect to itself from a third party that its Parent's Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior OfferOffer (as defined in Section 7.3(f)), it may then, prior to the Company may then delivery of the Voting Agreements pursuant to Section 7.10 hereof, take the following actions (but only if and to the extent that (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) the Parent's Board of Directors of the Company concludes in good faith, after consultation with following the receipt of advice of its outside legal counsel, that the failure to do so would is reasonably be expected likely to result in a breach of its fiduciary obligations under applicable Legal Requirementslaw and (ii) neither Parent nor any of its Subsidiaries nor any representative of Parent or any of its Subsidiaries shall have breached or taken any action inconsistent with any of the provisions set forth in Section 7.3(a) in connection with such Parent Acquisition Proposal):
(i) Furnish nonpublic information to the third party making such Parent Acquisition Proposal, provided that (A) (1) within twenty-four hours of at least two (2) business days prior to furnishing any such nonpublic information to such party, it gives the Company gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information information, and (2) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all written and oral information furnished to such third party on the Company’s its behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement (as defined in Section 7.4) and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, Parent furnishes such information to the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Parent Acquisition Proposal, provided that within twenty-four hours of at least two (2) business days prior to entering into discussions or negotiations with such third party, Parent gives the Company gives Parent written notice that it has (or intends to) of its intention to enter into discussions or negotiations with such third party.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Autotradecenter Com Inc)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a)this Agreement, in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party that its the Board of Directors has in good faith concluded (after consultation with its outside legal counsel and its financial advisor), is, or would is reasonably be expected to lead toresult in, a Superior OfferOffer (as defined in Section 5.4(g)(ii)), the Company and its Representatives on behalf of the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the failure Board to do so would reasonably be expected to result in a breach of comply with its fiduciary obligations duties to the Company's stockholders under applicable Legal Requirementslaw):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company its gives Parent Cloudtech written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s its behalf, the terms of which are no less favorable at least as restrictive to such third party as the Company than those terms contained in the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent Cloudtech (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or and negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or and negotiations with such third party, the Company gives Parent Cloudtech written notice that it has (or intends to) of the its intention to enter into discussions or and negotiations with such third party.
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that Verigy or LTX-Credence, as the Company case may be, receives an unsolicited, bona fide written Acquisition Proposal from a third party that its Board of Directors has in good faith concluded (after following consultation with its outside legal counsel and its financial advisor), ) is, or would is reasonably be expected likely to lead to, a Superior Offer, Verigy or LTX-Credence, as the Company case may be, may then take any or all of the following actions (but only (1) if such party has not materially breached Section 5.3 in connection with such Acquisition Proposal, (i2) such Acquisition Proposal did party’s Shareholders’ Meeting has not arise (directly or indirectly) from a breach of Section 5.3(a) occurred and (ii3) to the extent the Board of Directors of the Company such party concludes in good faith, faith (after consultation with its outside legal counsel, ) that the failure to do so would be reasonably be expected likely to result in a breach of its fiduciary obligations duties under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) at least forty-eight (148) within twenty-four hours of prior to furnishing any such nonpublic information to such party, it gives the Company gives Parent other party hereto written notice that it has (or intends to) of its intention to furnish such nonpublic information and the identity of the Person or group making any such Acquisition Proposal and a copy of all written and electronic materials provided in connection with such Acquisition Proposal, (2B) the Company it receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the CompanyLTX-Credence’s or Verigy’s behalf, as the case may be, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement Agreement, provided that such agreement need not contain any standstill provisions and shall not contain terms which prevent LTX-Credence or Verigy, as the case may be, from complying with its obligations under this Section 5.3, and (BC) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company it furnishes such nonpublic information to Parent the other party hereto (to the extent such nonpublic information has not been previously so furnishedfurnished or made available), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twentyat least forty-four eight (48) hours of prior to entering into discussions or negotiations with such third party, it gives the Company gives Parent other party hereto written notice that it has (or intends to) of such party’s intention to enter into discussions or negotiations with such third party.
Appears in 1 contract
Samples: Merger Agreement (Verigy Ltd.)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in In the event that any Person or its Representative submits to the Company receives after the Agreement Date (and does not withdraw) an unsolicited, written, bona fide written Acquisition Proposal from a third party that its the Company Board of Directors has concludes in good faith concluded (after consultation with its outside legal counsel and its a financial advisor), advisor of national standing) is, or would could reasonably be expected to lead tobecome, a Superior Offer, then notwithstanding Section 5.3(a), the Company may then take may, so long as the following actions (but only if Company Stockholder Approval has not yet been obtained, (i) enter into discussions with such Person and its Representatives regarding such Acquisition Proposal, and (ii) deliver or make available to such Person and its Representatives nonpublic information regarding the Company and its Subsidiaries, provided, in every case, that the Company, its Subsidiaries and their Representatives comply with each of the following: (A) the Acquisition Proposal did not result or arise (directly or indirectly) from a any breach of the restrictions of Section 5.3(a), (B) the Company first shall have provided Parent with written notice of the identity of such Person and all of the material terms and conditions of such Acquisition Proposal and of the Company’s intention to take such actions, specifying which of such actions it intends to take, (C) before delivering to such Person or its Representatives any nonpublic information regarding the Company and its Subsidiaries, the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to the Company’s confidential information as the Confidentiality Agreement (as defined in Section 5.5), which confidentiality agreement shall not include any provision for any exclusive right to negotiate with such Person or having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement, and (iiD) the Board of Directors of the Company concludes in good faith, after consultation prior to or contemporaneously with outside legal counsel, that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) Furnish nonpublic information to the third party delivering or making such Acquisition Proposal, provided that (A) (1) within twenty-four hours of furnishing available any such nonpublic information to such partyPerson, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes shall deliver such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) delivered by the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with such third partyParent).
Appears in 1 contract
Samples: Merger Agreement (Virage Logic Corp)
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a an unaffiliated third party that its Board of Directors has in good faith concluded (after consultation with its outside legal counsel and following the receipt of the advice of its financial advisorand legal advisors and such other advice and information as deemed necessary), is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) to the extent that the Board of Directors of the Company concludes in good faith, after consultation with following the receipt of advice of the Company's outside legal counsel, that the failure to do so would could reasonably be expected determined to result in a breach of be inconsistent with its fiduciary obligations to the shareholders of the Company under applicable Legal Requirements):
(i) law: Request information from the Person making such Acquisition Proposal for the purposes of enabling the Board of Directors of the Company to become appropriately informed about the Acquisition Proposal that has been made and the Person that made it; Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (Aa) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company gives Parent written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s 's behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement and (Bb) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information ; and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or and negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company gives Parent written notice that it has (or intends to) of the Company's intention to enter into discussions or negotiations with such third party.
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a6.2(b)(i), in the event that the Company receives an unsolicited, bona fide written offer for the acquisition of 100% of the equity or assets of the Company (an “Acquisition Proposal Proposal”) from a third party that its the Board of Directors has in good faith concluded (after consultation with following the receipt of the advice of its outside legal counsel and its financial advisor), ) is, or would is reasonably be expected likely to lead toresult in, a Superior OfferOffer (as defined below), the Company may then take the following actions (but only if (i) such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) and (ii) provided that the Board of Directors of the Company concludes in good faith, faith (after consultation with their outside legal counsel, advisors) that the failure to do so would reasonably could be expected to result in a breach of its inconsistent with their fiduciary obligations duties under applicable Legal Requirements):law:
(i1) Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (Aa) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company gives Parent the Purchaser written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement behalf and (Bb) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent the Purchasers (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and.
(ii2) Engage in discussions or negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company gives Parent the Purchasers written notice that it has (or intends to) of the Company’s intention to enter into discussions or negotiations with such third party and during such negotiations provides Purchasers with copies of all written proposals delivered by such third party, keeps Purchasers updated regarding negotiations and discussions in a reasonably timely manner and provides the Purchasers the opportunity to fully participate as observers in all such negotiations and discussions.
(3) In the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer.
Appears in 1 contract
Superior Offers. Notwithstanding anything to the contrary contained in Section 5.3(a), in In the event that any Person submits to the Company receives (and does not withdraw) an unsolicited, written, bona fide written Acquisition Proposal from a third party that its the Company Board of Directors has reasonably concludes in good faith concluded (after consultation with receipt of advice of its outside legal counsel and its a financial advisor), advisor of national standing) is, or would reasonably be expected likely to lead tobecome, a Superior Offer, then notwithstanding Section 5.3(a), the Company may then take may, so long as the following actions (but only if Company Stockholder Approvals have not yet been obtained, (i) enter into discussions with such Person regarding such Acquisition Proposal did not arise (directly or indirectly) from a breach of Section 5.3(a) Proposal, and (ii) deliver or make available to such Person nonpublic information regarding the Board of Directors Company and its Subsidiaries, provided, in every case, that the Company, its Subsidiaries and the Company Representatives comply with each of the following: (A) neither the Company, any of its Subsidiaries nor any Company concludes Representative shall have violated any of the restrictions set forth in this Section 5.3, (B) the Company Board first shall have concluded in good faith, after consultation with receipt of advice of its outside legal counsel, that such action is required in order for the failure Company Board to do so would reasonably be expected to result in a breach of comply with its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements):
law, (iC) Furnish nonpublic information to the third party making Company first shall have provided Acquiror with written notice of the identity of such Person and all of the material terms and conditions of such Acquisition ProposalProposal and of the Company’s intention to take such actions, provided (D) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement (as defined in Section 5.5), it being understood that such confidentiality agreement shall not include any provision calling for any exclusive right to negotiate with such Person or having the purported effect of restricting it from satisfying its obligations under this Agreement, (AE) the Company first shall have given Acquiror at least three Business Days advance notice of its intent to take such actions, specifying what actions it intends to take, and (1F) within twenty-four hours of furnishing prior to or contemporaneously with delivering or making available any such nonpublic information to such partyPerson, the Company gives Parent written notice that it has (or intends to) furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and limitations on the use and disclosure of information furnished to such third party on the Company’s behalf, the terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement and (B) contemporaneously with or prior to furnishing any shall deliver such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent Acquiror (to the extent such nonpublic information has not been previously so furnished), except that (x) delivered by the Company may redact names of employees (other than officers) set forth in such information and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; Acquiror and
(ii) Engage in discussions or negotiations with the third party with respect , to the Acquisition Proposal, provided that within twenty-four hours of entering into discussions or negotiations with such third partyextent previously delivered, the Company gives Parent written notice that it has (or intends to) enter into discussions or negotiations with delivers to Acquiror a complete list identifying all such third partynonpublic information delivered to such Person).
Appears in 1 contract
Samples: Merger Agreement (Cisco Systems Inc)
Superior Offers. Notwithstanding anything any agreement to the contrary contained in Section 5.3(a)the Merger Agreement, in the event that that, prior to the mailing of the proxy statement (as set forth in Section 5.1 of the Merger Agreement), the Company receives an unsolicited, a bona fide written Acquisition Proposal from a third party that its Board board of Directors directors (or a committee thereof to which the board of directors has properly delegated authority to negotiate and approve any such transaction (the "Special Committee")) has in good faith concluded (after consultation with its outside legal counsel and following the receipt of the advice of its financial advisor), is, or would is reasonably be expected likely to lead toresult in, a Superior Offer, the Company may then take the following actions (but only if (i) actions: Request information from the person making such Acquisition Proposal did not arise (directly or indirectly) from a breach for the purposes of Section 5.3(a) enabling the Special Committee to become appropriately informed about the Acquisition Proposal that has been made and (ii) the Board of Directors of the Company concludes in good faith, after consultation with outside legal counsel, person that the failure to do so would reasonably be expected to result in a breach of its fiduciary obligations under applicable Legal Requirements):
(i) made it; Furnish nonpublic information to the third party making such Acquisition Proposal, provided that (Aa) (1) within twenty-four hours of concurrently with furnishing any such nonpublic information to such party, the Company gives Parent APG Buyer written notice that it has (or intends to) of its intention to furnish such nonpublic information and (2) the Company receives from the third party an executed confidentiality agreement containing standstill terms and customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on the Company’s 's behalf, the terms of which are no less favorable to at least as restrictive as the Company than those terms contained in the Confidentiality Agreement and (Bb) contemporaneously with or prior to furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent APG Buyer (to the extent such nonpublic information has not been previously so furnished), except that (x) the Company may redact names of employees (other than officers) set forth in such information ; and (y) the Company shall not be required to provide such information if doing so would be inconsistent with any applicable antitrust Legal Requirement; and
(ii) Engage in discussions or and negotiations with the third party with respect to the Acquisition Proposal, provided that within twenty-four hours of concurrently with entering into discussions or negotiations with such third party, the Company gives Parent APG Buyer written notice that it has (or intends to) of the Company's intention to enter into discussions or negotiations with such third party.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Scientific Technologies Inc)
