Takeover Proposals. (a) Except as expressly permitted by this Section 5.2 (including Section 5.2(b)), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company and its Subsidiaries shall not, nor shall they authorize or knowingly permit any of their respective Representatives to, directly or indirectly, (i) solicit, initiate or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, a Takeover Proposal, (ii) furnish or otherwise make available to any Person (other than Parent, Sub or any designees of Parent or Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Sub or any designees of Parent or Sub) access to the business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case that would reasonably be expected to result in the making, submission or announcement of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) a Takeover Proposal, or (B) any inquiries that would reasonably be expected to lead to a Takeover Proposal, (iii) participate or engage in discussions or negotiations with any Person with respect to a Takeover Proposal, (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal or (vi) authorize, commit, publicly propose or agree to do any of the foregoing. (b) Notwithstanding anything to the contrary set forth in this Agreement, if at any time prior to 11:59 p.m. New York City time on the date that is thirty-five calendar days after the date hereof, (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from any Person and (ii) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel), that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, the Company may (A) furnish non-public information with respect to the Company and its Subsidiaries, or provide access to the Business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) participate or engage in discussions or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt (and in any event within three Business Days following receipt) written notice of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public information to, such Person, and (2) promptly (and in any event within one Business Day) upon furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent, to the extent such information has not been previously furnished by the Company to Parent. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company shall not be in breach of this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first complying with the procedures set forth herein with respect to any such discussions provided that the Company provides written notice of such communication to Parent within two (2) Business Days of such communication. (c) Without limiting the generality of the foregoing, Parent, Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its Subsidiaries (in the case of any such Representative who is an investment banker, financial advisor, attorney, accountant or other advisor, to the extent that such Representative is or has been engaged by the Company in connection with the transactions contemplated hereby) shall be deemed to be a breach of this Section 5.2 by the Company. (d) In addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 5.2, the Company shall promptly (and in any event within two Business Days following receipt) notify Parent orally and in writing if the Company or any of its Subsidiaries, or any of its or their respective Representatives, receives (i) any Takeover Proposal, (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include a summary of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communications), and the identity of the Person making any such Takeover Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a reasonably current basis on the status and terms of any such Takeover Proposal, request or inquiry, any material modifications to the terms thereof and any other material developments related thereto. (e) The Company shall, and shall ensure that each Person that is a Representative of the Company immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Takeover Proposal. (f) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Sealy Corp), Merger Agreement (Tempur Pedic International Inc)
Takeover Proposals. (a) Except Giga, and each shall cause it Representatives, Subsidiaries or Subsidiaries’ Representatives as expressly permitted by this Section 5.2 (including Section 5.2(b))applicable, at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company and its Subsidiaries shall not, nor shall they authorize or knowingly permit any of their respective Representatives not to, directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 6.05(b), (i) solicitconduct or engage in any discussions or negotiations with, initiate or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, a Takeover Proposal, (ii) furnish or otherwise make available to any Person (other than Parent, Sub or any designees of Parent or Sub) disclose any non-public information relating to the Company Giga or any of its Subsidiaries, or as applicable, to, afford to any Person (other than Parent, Sub or any designees of Parent or Sub) access to the business or to the business, properties, assets, books, or records or other non-public information, or to any personnel, of the Company Giga or any of its SubsidiariesSubsidiaries to, in or knowingly assist, participate in, facilitate, or encourage any such case effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (ii) except where the Giga Board makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that it would or could reasonably be expected to result in the making, submission or announcement of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) a Takeover Proposal, or (B) any inquiries that would reasonably be expected to lead to a Takeover Proposal, (iii) participate or engage in discussions or negotiations with any Person with respect to a Takeover Proposal, (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal or (vi) authorize, commit, publicly propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary set forth in this Agreement, if at any time prior to 11:59 p.m. New York City time on the date that is thirty-five calendar days after the date hereof, (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from any Person and (ii) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel), that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, the Company may (A) furnish non-public information amend or grant any waiver or release under any standstill or similar agreement with respect to the Company and any class of equity securities of Giga or any of its Subsidiaries, Subsidiaries to amend or provide access to the Business grant any waiver or to the properties, assets, books, records release under any standstill or other non-public information, or similar agreement with respect to any personnel, class of the Company equity securities of Giga or any of its Subsidiaries; or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to the Person making such any Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (such a confidentiality agreementeach, an “Acceptable Confidentiality Acquisition Agreement”). Except as expressly permitted by this Agreement, the Giga Board shall not effect a Giga Adverse Recommendation Change. Giga shall cause its Representatives, Subsidiaries and (B) participate Subsidiaries’ Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions, or engage in discussions or negotiations negotiations, if any, with any third party conducted prior to the Person making such Effective Date with respect to any Takeover Proposal and shall request that any such third party (and or its Representativesagents or advisors) regarding such Takeover Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt (and in any event within three Business Days following receipt) written notice of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing possession of non-public information to, in respect of Giga and any of their respective Subsidiaries that was furnished by or on behalf of such Person, and (2) promptly party or its respective Subsidiaries to return or destroy (and in any event within one Business Dayconfirm destruction of) upon furnishing any non-public information to all such Person, the Company furnishes such non-public information to Parent, to the extent such information has not been previously furnished by the Company to Parentinformation. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company shall not be in breach of this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first complying with the procedures set forth herein with respect to any such discussions provided that the Company provides written notice of such communication to Parent within two (2) Business Days of such communication.
(c) Without limiting the generality of the foregoing, Parent, Sub and the Company acknowledge and hereby agree it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.2 6.05 by any Representative of the Company Giga or its Subsidiaries whether or not such Representative is purporting to act on behalf of Giga or any of its Subsidiaries (in the case of any such Representative who is an investment bankerSubsidiaries, financial advisor, attorney, accountant or other advisor, to the extent that such Representative is or has been engaged by the Company in connection with the transactions contemplated hereby) shall be deemed to be a breach of this Section 5.2 6.05 by the Companyapplicable party.
(d) In addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 5.2, the Company shall promptly (and in any event within two Business Days following receipt) notify Parent orally and in writing if the Company or any of its Subsidiaries, or any of its or their respective Representatives, receives (i) any Takeover Proposal, (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include a summary of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communications), and the identity of the Person making any such Takeover Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a reasonably current basis on the status and terms of any such Takeover Proposal, request or inquiry, any material modifications to the terms thereof and any other material developments related thereto.
(e) The Company shall, and shall ensure that each Person that is a Representative of the Company immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Takeover Proposal.
(f) For purposes of this Agreement:
Appears in 2 contracts
Samples: Share Exchange Agreement (Giga Tronics Inc), Share Exchange Agreement (Giga Tronics Inc)
Takeover Proposals. (a) Except as expressly permitted by this Section 5.2 (including Section 5.2(b)), at all times during the period commencing with the Cimtech agrees that from and after its execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and agreement through the Effective Time, it shall not and it shall use its best efforts to cause the Company directors, officers, employees and its Subsidiaries shall notshareholders, nor shall they authorize and all investment bankers, attorneys or knowingly permit any of their respective Representatives other advisors or representatives retained by Cimtech not to, directly or indirectly, (i) solicit, initiate solicit or induce encourage the making, submission or announcement of, or knowingly encourage, facilitate or assist, a of any Takeover ProposalProposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish or otherwise make available to any Person (other than Parent, Sub or third party any designees of Parent or Sub) any non-public information relating to the Company or any of its Subsidiarieswith respect to, or afford take any other action to any Person (other than Parent, Sub or any designees of Parent or Sub) access to the business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case that would reasonably be expected to result in the making, submission or announcement of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) a Takeover Proposal, or (B) facilitate any inquiries or the making of any proposal that would reasonably be expected to lead to constitutes, a Takeover Proposal, (iii) participate make or engage authorize any statement or recommendation in discussions or negotiations with support of any Person with respect to a Takeover Proposal, or (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of agreement with respect to any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal or (vi) authorize, commit, publicly propose or agree to do any of the foregoingProposal.
(b) Notwithstanding anything to the contrary set forth foregoing paragraph (a), nothing contained in this AgreementSection 6.8 shall prohibit the Board of Directors, if at any time prior to 11:59 p.m. New York City time on the date that is thirty-five calendar days after the date hereof, (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from any Person and (ii) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel), that such Takeover Proposal constitutes executive officers or would reasonably be expected to lead to a Superior Proposal, the Company may (A) furnish non-public information with respect to the Company and its Subsidiariesshareholders of Cimtech, or provide access to the Business or to the propertiesinvestment bankers, assetsattorneys, books, records or other non-public information, advisors or to any personnel, of the Company or any of its Subsidiaries, to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) participate or engage in discussions or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt (and representatives retained by Cimtech from participating in any event within three Business Days following receipt) written notice of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public any information to, any third party that makes a Takeover Proposal if all of the following events shall have occurred: (i) EAI has been notified in writing of such PersonTakeover Proposal within 24 hours of Cimtech's receipt thereof, including the identity of the party making the Takeover Proposal and the specific terms and conditions thereof, and has been given copies of such Takeover Proposal; (2ii) promptly such third party has made a written Takeover Proposal to the Board of Directors of Cimtech, which Takeover Proposal identifies a price or range of values to be paid and based on the advice of Cimtech's investment bankers, the Board of Directors of Cimtech has determined that such Takeover Proposal is financially more favorable to the shareholders of Cimtech than the terms of the Merger; (iii) Cimtech's Board of Directors has determined, based on the advice of Cimtech's investment bankers, that such third party is financially capable of consummating the transactions specified in the Takeover Proposal; and in any event within one Business Day(iv) upon furnishing the Board of Directors of Cimtech has determined, after consultation with its outside legal counsel, that its fiduciary duties require it to furnish information to and negotiate with such third party. Notwithstanding the foregoing, Cimtech shall not provide any non-public information to such Person, third party unless (x) prior to the Company furnishes date thereof Cimtech has provided such information to EAI; (y) Cimtech has notified EAI in advance of any such proposed disclosure of non-public information and has provided EAI with a description of the information Cimtech intends to disclose; and (z) Cimtech provides such non-public information pursuant to Parent, a nondisclosure agreement in a form satisfactory to the extent such information has not been previously furnished by the Company to Parent. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company shall not be in breach of this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first complying with the procedures set forth herein with respect to any such discussions provided that the Company provides written notice of such communication to Parent within two (2) Business Days of such communicationEAI.
(c) Without limiting In addition to the generality foregoing requirements, Cimtech shall not accept or enter into any agreement concerning a Takeover Proposal until at least 48 hours after EAI's receipt of a copy of such Takeover Proposal. Upon compliance with the foregoing, Parent, Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its Subsidiaries (requirements in the case of any such Representative who is an investment bankerforegoing paragraph (b) and this paragraph (c), financial advisor, attorney, accountant or other advisor, Cimtech shall be entitled to the extent that such Representative is or has been engaged by the Company terminate this Agreement in connection accordance with the transactions contemplated hereby) shall be deemed to be a breach provisions of this Section 5.2 by the Company8.1(d).
(d) In addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 5.2, the Company shall promptly (and in any event within two Business Days following receipt) notify Parent orally and in writing if the Company or any of its Subsidiaries, or any of its or their respective Representatives, receives (i) any Takeover Proposal, (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include a summary of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communications), and the identity of the Person making any such Takeover Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a reasonably current basis on the status and terms of any such Takeover Proposal, request or inquiry, any material modifications to the terms thereof and any other material developments related thereto.
(e) The Company shall, and shall ensure that each Person that is a Representative of the Company immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Takeover Proposal.
(f) For purposes of this Agreement:, "Takeover Proposal" means any proposal or offer for a merger, consolidation or other business combination involving Cimtech or any proposal or offer to acquire a material equity interest in, or a substantial portion of the assets of, Cimtech other than by EAI as contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Engineering Animation Inc)
Takeover Proposals. (a) Except as expressly otherwise permitted by this Section 5.2 (including Section 5.2(b))4.2, at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company and its Subsidiaries Golden Queen shall not, nor and shall they cause GQ California and any of Golden Queen’s Affiliates not to, and shall not authorize or knowingly permit any of their its and its Affiliates’ respective Representatives officers, directors, employees, financial advisors and investment bankers, agents and representatives (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate facilitate or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, a Takeover Proposal, (ii) furnish or otherwise make available to any Person (other than Parent, Sub or any designees including by way of Parent or Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Sub or any designees of Parent or Sub) access to the business or to the properties, assets, books, records or other furnishing non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case that would reasonably be expected to result in the making, submission or announcement making of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) a Takeover Proposalany inquiries regarding, or (B) the making of any inquiries proposal that would could reasonably be expected to lead to a Takeover Proposal, (iii) participate or engage in discussions or negotiations with any Person with respect to a Takeover Proposal, (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal or (viii) authorizeengage in, commitcontinue or otherwise participate in any discussions or negotiations with any third party regarding a Takeover Proposal; provided, publicly propose however, that if Golden Queen, GQ California or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary set forth in this Agreementtheir respective Representatives receives, if at any time prior to 11:59 p.m. New York City time on the date that is thirty-five calendar days after the date hereofof this Agreement and prior to receipt of the GQ Stockholder Approval, (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from which was unsolicited and not involving a breach of this Agreement and that the Board of Directors of Golden Queen (or any Person and (iiauthorized committee thereof) the Company Board reasonably determines in good faith (faith, after consultation with its outside legal counsel and Maxit Capital LP or another outside financial advisor and outside legal counsel)of national reputation, that such Takeover Proposal constitutes or would could reasonably be expected to lead to a Superior Proposal, and the Company may Board of Directors of Golden Queen reasonably determines in good faith, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of Golden Queen’s directors’ fiduciary duties to Golden Queen or the stockholders of Golden Queen under applicable Law, then Golden Queen and GQ California and their respective Representatives may, prior to receipt of the GQ Stockholder Approval and after providing LUK Holdco and Gauss not less than 24 hours written notice of its intention to take such action, and subject to compliance with Golden Queen’s and GQ California’s obligations under this Section 4.2, (A) furnish non-public furnish, pursuant to an Acceptable Confidentiality Agreement (as defined below), any information with respect to the Company Golden Queen and its Subsidiaries, or provide access to the Business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, GQ California to the Person (or group of Persons) making such Takeover Proposal (provided that Golden Queen shall concurrently provide to Auvergne, LUK Holdco and its Gauss all information concerning Golden Queen or GQ California that is provided to any Person given such access which was not previously provided to LUK Holdco, Gauss or their respective Representatives) pursuant to a customary confidentiality agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) engage and participate or engage in discussions or and negotiations with the such Person making such Takeover Proposal (and its Representativesor group of Persons) regarding such Takeover Proposal; provided. Golden Queen shall provide Auvergne, that, in the case LUK Holdco and Gauss with a correct and complete copy of any action taken each confidentiality agreement entered into pursuant to the preceding clauses this Section 4.2 within twenty four (A24) or (B), (1) the Company gives Parent prompt (and in any event within three Business Days following receipt) written notice hours of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public information to, such Person, and (2) promptly (and in any event within one Business Day) upon furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent, to the extent such information has not been previously furnished by the Company to Parentexecution thereof. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company Golden Queen shall not be in breach of this Agreement in enter into any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first confidentiality agreement with any Person which prohibits Golden Queen from complying with the procedures set forth herein with respect its obligations to any such discussions provided that the Company provides written notice of such communication to Parent within two (2) Business Days of such communication.
(c) Auvergne, LUK Holdco and Gauss under this Section 4.2. Without limiting the generality any of the foregoing, Parent, Sub and the Company acknowledge and hereby agree it is understood that any violation of the restrictions set forth in this Section 5.2 4.2 by any Representative of the Company Golden Queen’s Subsidiaries or any of its Subsidiaries (in the case of any such Representative who is an investment banker, financial advisor, attorney, accountant or other advisor, to the extent that such Representative is or has been engaged by the Company in connection with the transactions contemplated hereby) Representatives shall be deemed to be a breach of this Section 5.2 4.2 by the CompanyGolden Queen.
(db) In addition to the obligations of the Company set forth in paragraphs (aExcept as permitted by this Section 4.2(b), neither the Board of Directors of Golden Queen nor any committee thereof shall (bi)(1) and (c) of this Section 5.2withdraw, qualify or change, or publicly propose to withdraw, qualify or change, in a manner adverse to Gauss, the Company shall promptly GQ Board Recommendation or (and 2) approve or recommend a Takeover Proposal (any action described in any event within two Business Days following receiptthis clause (i) notify Parent orally and in writing if the Company being referred to as a “GQ Adverse Recommendation Change”) or (ii) authorize or permit Golden Queen or any of its SubsidiariesSubsidiaries to enter into any merger, acquisition, share exchange or any of its or their respective Representatives, receives (i) other agreement with respect to any Takeover ProposalProposal (other than a confidentiality agreement in accordance with this Section 4.2) (each, a “GQ Acquisition Agreement”). Notwithstanding the foregoing, prior to receipt of the GQ Stockholder Approval (iiA) any request for information the Board of Directors of Golden Queen may withdraw, qualify or change, in a manner adverse to Gauss, the GQ Board Recommendation in response to an Intervening Event (as defined below) if such Board reasonably determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected constitute a breach of Golden Queen’s directors’ fiduciary duties to lead to Golden Queen and the shareholders of Golden Queen under applicable Law, and (B) if the Board of Directors of Golden Queen receives a Takeover Proposal that the Board of Directors of Golden Queen reasonably determines in good faith, after consultation with outside legal counsel and Maxit Capital LP or (iii) any inquiry another outside financial advisor of national reputation, constitutes a Superior Proposal, Golden Queen may make a GQ Adverse Recommendation Change with respect toto such Superior Proposal and/or Golden Queen or its Subsidiaries may enter into a GQ Acquisition Agreement with respect to such Superior Proposal if, or which would reasonably in the case of a GQ Acquisition Agreement, Golden Queen shall have, concurrently with such entry into such GQ Acquisition Agreement, terminated this Agreement pursuant to Section 6.1(d)(ii) and paid to LUK Holdco and Auvergne the GQ Termination Fee due under Section 6.3(b); provided, however, that no GQ Adverse Recommendation Change, entry into any GQ Acquisition Agreement and/or termination of this Agreement by Golden Queen pursuant to Section 6.1(d)(ii), shall be expected made until after the fifth Business Day following Auvergne’s, LUK Holdco’s and Gauss’s receipt of written notice from Golden Queen (a “4.2 Notice”) advising Auvergne, LUK Holdco and Gauss that the Board of Directors of Golden Queen intends to lead tomake such GQ Adverse Recommendation Change, any Takeover Proposalenter into such GQ Acquisition Agreement and/or terminate this Agreement pursuant to Section 6.1(d)(ii) and specifying, such notice to include a summary of as applicable, the material Intervening Event, the terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communications), and the identity of the Person making or group of Persons making) the Superior Proposal, a summary of the value and financial terms that the Board of Directors of Golden Queen, after consultation with outside legal counsel and Maxit Capital LP or another outside financial advisor of national reputation, determined should be ascribed to any non-cash consideration offered under such Superior Proposal, and including copies of all materials described in Section 4.2(d)(ii) (it being understood and agreed that any amendment to the financial terms or other material terms or conditions of such Superior Proposal shall require a new 4.2 Notice and a new five (5) Business Day period); and during such period, if requested by Auvergne, LUK Holdco and Gauss, Golden Queen shall engage in good faith negotiations with Auvergne, LUK Holdco and Gauss to amend this Agreement in a manner such that the failure by the Board of Directors of Golden Queen to make a GQ Adverse Recommendation Change or to so terminate this Agreement would not be inconsistent with its fiduciary duties under applicable Law; and in determining whether to make any such GQ Adverse Recommendation Change or termination (and whether the relevant Takeover Proposal still constitutes a Superior Proposal), request or inquiry. The Company the Board of Directors of Golden Queen shall keep Parent reasonably informed on a reasonably current basis on the status and terms of take into account any such Takeover Proposal, request or inquiry, any material modifications changes to the terms thereof of this Agreement proposed by Auvergne, LUK Holdco and any other material developments related theretoGauss.
(ec) The Company In addition to the other obligations of Golden Queen set forth in this Section 4.2:
(i) Except as otherwise previously agreed to in writing by Golden Queen and LUK Holdco, Golden Queen shall, and shall ensure that each Person that is a Representative of the Company cause GQ California and Representatives to, cease immediately cease and cause to be terminated any and all existing solicitation of, or discussions or negotiations with, with any Person relating third party or its representatives or financing sources conducted prior to the date of this Agreement with respect to any Takeover Proposal, and Golden Queen shall promptly require that each Person (other than LUK Holdco) that has executed a confidentiality agreement within the 12-month period prior to the date of this Agreement in connection with consideration of any potential Takeover Proposal, to the extent required by such confidentiality agreement, to return to Golden Queen or destroy all confidential information heretofore furnished to such Person by or on behalf of Golden Queen or GQ California and all analyses and other materials prepared by or on behalf of such Person that contains, reflects or analyzes that information; and
(ii) Golden Queen shall promptly advise Auvergne, LUK Holdco and Gauss in writing, and in no event later than twenty four (24) hours after receipt, if any proposal, offer or inquiry is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Golden Queen, GQ California or Representatives in respect of a Takeover Proposal, and shall, in such notice to LUK Holdco and Gauss, indicate the identity of the Person or group of Persons making such proposal, offer, inquiry or request and the terms and conditions of such proposal or offer and the nature of such inquiry or request (and shall include with such notice copies of any draft agreements, financing commitment letters and other written materials and correspondence received from or on behalf of such Person or group of Persons relating to such proposal, offer, inquiry or request), and thereafter shall promptly keep Auvergne, LUK Holdco and Gauss fully informed of all material developments affecting the status and terms and conditions of such proposal, offer, inquiry or request (and Golden Queen shall provide Auvergne, LUK Holdco and Gauss with copies of any additional drafts of agreements, financing commitment letters and other written materials and correspondence received that relate thereto) and of the status of discussions or negotiations.
(fd) For purposes of As used in this Agreement:
Appears in 1 contract
Takeover Proposals. (a) Except as expressly permitted by this Section 5.2 (including Section 5.2(b)), at all times during the period commencing with the Sense8 agrees that from and after its execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Original Agreement pursuant to Article VIII and through the Effective Time, it shall not and it shall use its best efforts to cause the Company directors, officers, employees and its Subsidiaries shall notshareholders, nor shall they authorize and all investment bankers, attorneys or knowingly permit any of their respective Representatives other advisors or representatives retained by Sense8 not to, directly or indirectly, (i) solicit, initiate solicit or induce encourage the making, submission or announcement of, or knowingly encourage, facilitate or assist, a of any Takeover ProposalProposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish or otherwise make available to any Person (other than Parent, Sub or third party any designees of Parent or Sub) any non-public information relating to the Company or any of its Subsidiarieswith respect to, or afford take any other action to any Person (other than Parent, Sub or any designees of Parent or Sub) access to the business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case that would reasonably be expected to result in the making, submission or announcement of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) a Takeover Proposal, or (B) facilitate any inquiries or the making of any proposal that would reasonably be expected to lead to constitutes, a Takeover Proposal, (iii) participate make or engage authorize any statement or recommendation in discussions or negotiations with support of any Person with respect to a Takeover Proposal, or (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of agreement with respect to any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal or (vi) authorize, commit, publicly propose or agree to do any of the foregoingProposal.
(b) Notwithstanding anything to the contrary set forth foregoing paragraph (a), nothing contained in this AgreementSection 6.8 shall prohibit the Board of Directors, if at any time prior to 11:59 p.m. New York City time on the date that is thirty-five calendar days after the date hereof, (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from any Person and (ii) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel), that such Takeover Proposal constitutes executive officers or would reasonably be expected to lead to a Superior Proposal, the Company may (A) furnish non-public information with respect to the Company and its Subsidiariesshareholders of Sense8, or provide access to the Business or to the propertiesinvestment bankers, assetsattorneys, books, records or other non-public information, advisors or to any personnel, of the Company or any of its Subsidiaries, to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) participate or engage in discussions or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt (and representatives retained by Sense8 from participating in any event within three Business Days following receipt) written notice of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public any information to, any third party that makes a Takeover Proposal if all of the following events shall have occurred: (i) EAI has been notified in writing of such PersonTakeover Proposal within 24 hours of Sense8's receipt thereof, including the identity of the party making the Takeover Proposal and the specific terms and conditions thereof, and has been given copies of such Takeover Proposal; (2ii) promptly such third party has made a written Takeover Proposal to the Board of Directors of Sense8, which Takeover Proposal identifies a price or range of values to be paid and based on the advice of Sense8's investment bankers, the Board of Directors of Sense8 has determined that such Takeover Proposal is financially more favorable to the shareholders of Sense8 than the terms of the Merger; (iii) Sense8's Board of Directors has determined, based on the advice of Sense8's investment bankers, that such third party is financially capable of consummating the transactions specified in the Takeover Proposal; and in any event within one Business Day(iv) upon furnishing the Board of Directors of Sense8 has determined, after consultation with its outside legal counsel, that its fiduciary duties require it to furnish information to and negotiate with such third party. Notwithstanding the foregoing, Sense8 shall not provide any non-public information to such Person, third party unless (x) prior to the Company furnishes date thereof Sense8 has provided such information to EAI; (y) Sense8 has notified EAI in advance of any such proposed disclosure of non-public information and has provided EAI with a description of the information Sense8 intends to disclose; and (z) Sense8 provides such non-public information pursuant to Parent, a nondisclosure agreement in a form satisfactory to the extent such information has not been previously furnished by the Company to Parent. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company shall not be in breach of this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first complying with the procedures set forth herein with respect to any such discussions provided that the Company provides written notice of such communication to Parent within two (2) Business Days of such communicationEAI.
(c) Without limiting In addition to the generality foregoing requirements, Sense8 shall not accept or enter into any agreement concerning a Takeover Proposal until at least 48 hours after EAI's receipt of a copy of such Takeover Proposal. Upon compliance with the foregoing, Parent, Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its Subsidiaries (requirements in the case of any such Representative who is an investment bankerforegoing paragraph (b) and this paragraph (c), financial advisor, attorney, accountant or other advisor, Sense8 shall be entitled to the extent that such Representative is or has been engaged by the Company terminate this Agreement in connection accordance with the transactions contemplated hereby) shall be deemed to be a breach provisions of this Section 5.2 by the Company8.1(d).
(d) In addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 5.2, the Company shall promptly (and in any event within two Business Days following receipt) notify Parent orally and in writing if the Company or any of its Subsidiaries, or any of its or their respective Representatives, receives (i) any Takeover Proposal, (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include a summary of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communications), and the identity of the Person making any such Takeover Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a reasonably current basis on the status and terms of any such Takeover Proposal, request or inquiry, any material modifications to the terms thereof and any other material developments related thereto.
(e) The Company shall, and shall ensure that each Person that is a Representative of the Company immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Takeover Proposal.
(f) For purposes of this Agreement:, "Takeover Proposal" means any proposal or offer for a merger, consolidation or other business combination involving Sense8 or any proposal or offer to acquire a material A-18 24 equity interest in, or a substantial portion of the assets of, Sense8 other than by EAI as contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Engineering Animation Inc)
Takeover Proposals. (a) Except as expressly permitted by this Section 5.2 (including Section 5.2(b)), at all times during the period commencing with the RTI agrees that from and after its execution and delivery of this Agreement and continuing until through the earlier to occur Effective Time of the termination of this Agreement pursuant to Article VIII and the Effective TimeMerger, the Company and its Subsidiaries it shall not, nor and it shall they authorize instruct its directors and officers and all investment bankers, attorneys or knowingly permit any of their respective Representatives other advisors or representatives retained by it not to, directly or indirectly, (i) solicit, initiate solicit or induce encourage the making, submission or announcement of, or knowingly encourage, facilitate or assist, a of any Takeover ProposalProposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish or otherwise make available to any Person (other than Parent, Sub or third party any designees of Parent or Sub) any non-public information relating to the Company or any of its Subsidiarieswith respect to, or afford take any other action to any Person (other than Parent, Sub or any designees of Parent or Sub) access to the business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case that would reasonably be expected to result in the making, submission or announcement of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) a Takeover Proposal, or (B) facilitate any inquiries or the making of any proposal that would reasonably be expected to lead to constitutes, a Takeover Proposal, (iii) participate make or engage authorize any statement or recommendation in discussions or negotiations with support of any Person with respect to a Takeover Proposal, or (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of agreement with respect to any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal or (vi) authorize, commit, publicly propose or agree to do any of the foregoingProposal.
(b) Notwithstanding anything to the contrary set forth foregoing paragraph (a), nothing contained in this AgreementSection 6.7 shall prohibit the Board of Directors, if at any time prior to 11:59 p.m. New York City time on the date that is thirty-five calendar days after the date hereof, (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from any Person and (ii) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel), that such Takeover Proposal constitutes executive officers or would reasonably be expected to lead to a Superior Proposal, the Company may (A) furnish non-public information with respect to the Company and its Subsidiariesshareholders of RTI, or provide access to the Business or to the propertiesinvestment bankers, assetsattorneys, books, records or other non-public information, advisors or to any personnel, of the Company or any of its Subsidiaries, to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) participate or engage in discussions or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt (and representatives retained by RTI from participating in any event within three Business Days following receipt) written notice of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public any information to, any third party that makes a Takeover Proposal to RTI if all of the following events shall have occurred: (i) EAI has been notified in writing of such PersonTakeover Proposal within 24 hours of RTI's receipt thereof, including the identity of the party making the Takeover Proposal and the specific terms and conditions thereof, and has been given copies of such Takeover Proposal; (2ii) promptly such third party has made a written Takeover Proposal to the Board of Directors of RTI, which takeover proposal identifies a price or range of values to be paid, and the Board of Directors of RTI has determined that such Takeover Proposal is financially more favorable to the shareholders of RTI than the terms of the Merger; (iii) RTI's Board of Directors has determined that such third party is financially capable of consummating the transactions specified in the Takeover Proposal; and in any event within one Business Day(iv) upon furnishing the Board of Directors of RTI has determined, after consultation with its outside legal counsel, that its fiduciary duties require it to furnish information to and negotiate with such third party. Notwithstanding the foregoing, RTI shall not provide any non-public information to such Person, third party unless (x) prior to the Company furnishes date thereof RTI has provided such information to EAI; (y) RTi has notified EAI in advance of any such proposed disclosure of non-public information and has provided EAI with a description of the information RTI intends to disclose; and (z) RTI provides such non-public information pursuant to Parent, a nondisclosure agreement in a form substantially similar to that entered into between EAI and RTI. In addition to the extent foregoing requirements, RTI shall not accept or enter into any agreement concerning a Takeover Proposal until at least 48 hours after EAI's receipt of a copy of such information has not been previously furnished by the Company to Parent. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal. Upon compliance with the requirements in this paragraph (b), the Company RTI shall not be in breach of entitled to terminate this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first complying accordance with the procedures set forth herein with respect to any such discussions provided that the Company provides written notice provisions of such communication to Parent within two (2) Business Days of such communicationSection 8.1(d).
(c) Without limiting the generality of the foregoing, Parent, Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its Subsidiaries (in the case of any such Representative who is an investment banker, financial advisor, attorney, accountant or other advisor, to the extent that such Representative is or has been engaged by the Company in connection with the transactions contemplated hereby) shall be deemed to be a breach of this Section 5.2 by the Company.
(d) In addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 5.2, the Company shall promptly (and in any event within two Business Days following receipt) notify Parent orally and in writing if the Company or any of its Subsidiaries, or any of its or their respective Representatives, receives (i) any Takeover Proposal, (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include a summary of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communications), and the identity of the Person making any such Takeover Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a reasonably current basis on the status and terms of any such Takeover Proposal, request or inquiry, any material modifications to the terms thereof and any other material developments related thereto.
(e) The Company shall, and shall ensure that each Person that is a Representative of the Company immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Takeover Proposal.
(f) For purposes of this Agreement:, "Takeover Proposal" means any proposal or offer for a merger, consolidation or other business combination involving RTI or any proposal or offer to acquire a material equity interest in, or a substantial portion of the assets of, RTI other than by EAI as contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Engineering Animation Inc)
Takeover Proposals. (a) Except as expressly permitted by this Section 5.2 (including Subject to Section 5.2(b)), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company and its Subsidiaries shall not, nor shall they authorize or knowingly permit any of their respective Representatives to, directly or indirectly, (i) solicit, initiate or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, a Takeover Proposal, (ii) furnish or otherwise make available to any Person (other than Parent, Sub or any designees of Parent or Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Sub or any designees of Parent or Sub) access to the business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case that would reasonably be expected to result in the making, submission or announcement of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) a Takeover Proposal, or (B) any inquiries that would reasonably be expected to lead to a Takeover Proposal, (iii) participate or engage in discussions or negotiations with any Person with respect to a Takeover Proposal, (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal Proposal, or (vi) authorize, commit, publicly propose commit or agree to do any of the foregoing. Upon execution of this Agreement, the Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing activities, discussions or negotiations with any Person (other than Parent, Sub or any permitted successor or assign) conducted heretofore with respect to any Takeover Proposal.
(b) Notwithstanding anything to the contrary set forth in this Agreement, if at any time prior to, (x) in the event the Stockholder Written Consent is delivered to the Company in accordance with Section 6.1(a), 11:59 p.m. New York City time on the date that is thirty-five thirty (30) calendar days after the date hereof, or (y) in the event the Stockholder Written Consent is not delivered to the Company in accordance with Section 6.1(a) and this Agreement is not terminated by Parent in accordance with Section 8.1(g), the date on which the Company Stockholder Approval is obtained at the Company Stockholders’ Meeting (the “Stockholder Approval Date”), (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from any Person and (ii) the Board of Directors of the Company Board determines in good faith (after consultation with its financial advisor, including at least one financial advisor who is not, and whose Affiliates are not, proposing to provide debt or equity financing in connection with such Takeover Proposal (a “Qualified Financial Advisor”), and outside legal counsel), that such Takeover Proposal constitutes or would could reasonably be expected to lead to a Superior Proposal, the Company may (A) furnish non-public information with respect to the Company and its Subsidiaries, or provide access to the Business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement on terms that are no less favorable to the Company than those contained in the Confidentiality Agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) participate or engage in discussions or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt (and in any event within three Business Days 24 hours following receipt) written notice of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, copy thereof if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public information to, such Person, and (2) promptly (and in any event within one Business Day) upon substantially contemporaneously with furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent, to the extent such information has not been previously furnished by the Company to Parent. The Company shall provide Parent with a correct and complete copy of any confidentiality agreement entered into pursuant to this paragraph within 24 hours of the execution thereof. The Company shall not terminate, waive, amend, release or modify any material provision of any confidentiality or standstill agreement to which it or any of its Subsidiaries is a party with respect to any Takeover Proposal, and shall enforce the material provisions of any such agreement and shall provide Parent with copies of any additional written documentation delivered to the Company or any of its Subsidiaries or its or their respective Representatives in connection therewith. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company shall not be in breach of this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first complying with the procedures set forth herein with respect to any such discussions provided discussions; provided, that the Company provides written notice of such communication complies with the notification obligations to Parent within two (2) Business Days of set forth herein in connection with such communicationinquiry by such third party.
(c) Without limiting the generality of the foregoing, Parent, Sub and the Company acknowledge and hereby agree that any material violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its Subsidiaries (in the case of any such Representative who is an investment banker, financial advisor, attorney, accountant or other advisor, to the extent that such Representative is or has been engaged by the Company in connection with the transactions contemplated hereby) shall be deemed to be a breach of this Section 5.2 by the Company.
(d) In addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 5.2, the Company shall promptly (and in any event within two Business Days 24 hours following receipt) notify Parent orally and in writing if the Company or any of its Subsidiaries, or any of its or their respective Representatives, receives (i) any Takeover Proposal, (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include a summary of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communicationsa copy, and written summaries of all oral communicationsif made in writing), and the identity of the Person making any such Takeover Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a reasonably current basis on of the status and terms of any such Takeover Proposal, request or inquiry, any material modifications to the terms thereof and any other material developments related thereto.
(e) The Company shall, and shall ensure that each Person that is a Representative of the Company immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Takeover Proposal.
(f) For purposes of this Agreement:
Appears in 1 contract
Takeover Proposals. (a) Except as expressly permitted by this Section 5.2 (including Section 5.2(b)), at all times during the period commencing with the Transom agrees that from and after its execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and through the Effective Time, the Company it shall not and it shall use its Subsidiaries shall notreasonable efforts to cause its directors, nor shall they authorize officers and employees, and all investment bankers, attorneys or knowingly permit any of their respective Representatives other advisors or representatives retained by Transom not to, directly or indirectly, (i) solicit, initiate solicit or induce encourage the making, submission or announcement of, or knowingly encourage, facilitate or assist, a of any Takeover ProposalProposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish or otherwise make available to any Person (other than Parent, Sub or third party any designees of Parent or Sub) any non-public information relating to the Company or any of its Subsidiarieswith respect to, or afford take any other action to any Person (other than Parent, Sub or any designees of Parent or Sub) access to the business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case that would reasonably be expected to result in the making, submission or announcement of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) a Takeover Proposal, or (B) facilitate any inquiries or the making of any proposal that would reasonably be expected to lead to constitutes, a Takeover Proposal, (iii) participate make or engage authorize any statement or recommendation in discussions or negotiations with support of any Person with respect to a Takeover Proposal, or (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of agreement with respect to any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal or (vi) authorize, commit, publicly propose or agree to do any of the foregoingProposal.
(b) Notwithstanding anything to the contrary set forth foregoing paragraph (a), nothing contained in this AgreementSection 6.8 shall prohibit the Board of Directors, if at any time prior to 11:59 p.m. New York City time on the date that is thirty-five calendar days after the date hereof, (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from any Person and (ii) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel), that such Takeover Proposal constitutes executive officers or would reasonably be expected to lead to a Superior Proposal, the Company may (A) furnish non-public information with respect to the Company and its Subsidiariesstockholders of Transom, or provide access to the Business or to the propertiesinvestment bankers, assetsattorneys, books, records or other non-public information, advisors or to any personnel, of the Company or any of its Subsidiaries, to the Person making such Takeover Proposal representatives retained by Transom from (and its Representativesx) pursuant to a customary confidentiality agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) participate or engage in discussions or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt (and participating in any event within three Business Days following receipt) written notice of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public any information to, any third party that makes a Takeover Proposal (y) making or authorizing any statement or recommendation in support of any Takeover Proposal, or (z) entering into any agreement with respect to any Takeover Proposal if all of the following events shall have occurred: (i) EAI has been notified in writing of such PersonTakeover Proposal within 24 hours of Transom's receipt thereof, including the identity of the party making the Takeover Proposal and the material terms thereof; (ii) such third party has made a written Takeover Proposal to the Board of Directors of Transom, which Takeover Proposal identifies a price or range of values to be paid and after consultation with Transom's investment bankers, the Board of Directors of Transom has determined that such Takeover Proposal is financially more favorable to the stockholders of Transom than the terms of the Merger; (iii) Transom's Board of Directors reasonably believes after consultation with Transom's investment bankers, that such third party is financially capable of consummating the transactions specified in the Takeover Proposal; and (2iv) promptly the Board of Directors of Transom has determined, after consultation with its outside legal counsel, that its fiduciary duties require it to 17 21 (x) furnish information to and negotiate with such third party, (y) make or authorize any statement or recommendation in support of any event within one Business DayTakeover Proposal, or (z) upon furnishing enter into any agreement with respect to any Takeover Proposal. Notwithstanding the foregoing, Transom shall not provide any non-public information to such Person, third party unless (A) Transom has notified EAI in advance of any such proposed disclosure of non-public information and has provided EAI with a description of the Company furnishes information Transom intends to disclose; and (B) Transom provides such non-public information pursuant to Parenta nondisclosure agreement in a form substantially similar to that certain Mutual Non-Disclosure Agreement dated August 27, to 1997 (the extent such information has not been previously furnished by the Company to Parent. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company shall not be in breach of this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement "Non-Disclosure Agreement") between Transom and is unable to discuss or respond to such matters without first complying with the procedures set forth herein with respect to any such discussions provided that the Company provides written notice of such communication to Parent within two (2) Business Days of such communicationEAI.
(c) Without limiting In addition to the generality foregoing requirements, Transom shall not accept or enter into any agreement concerning a Takeover Proposal until at least 48 hours after EAI's receipt of a copy of such Takeover Proposal. Upon compliance with the foregoing, Parent, Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its Subsidiaries (requirements in the case of any such Representative who is an investment bankerforegoing paragraph (b) and this paragraph (c), financial advisor, attorney, accountant or other advisor, Transom shall be entitled to the extent that such Representative is or has been engaged by the Company terminate this Agreement in connection accordance with the transactions contemplated hereby) shall be deemed to be a breach provisions of this Section 5.2 by the Company8.1(d).
(d) In addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 5.2, the Company shall promptly (and in any event within two Business Days following receipt) notify Parent orally and in writing if the Company or any of its Subsidiaries, or any of its or their respective Representatives, receives (i) any Takeover Proposal, (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include a summary of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communications), and the identity of the Person making any such Takeover Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a reasonably current basis on the status and terms of any such Takeover Proposal, request or inquiry, any material modifications to the terms thereof and any other material developments related thereto.
(e) The Company shall, and shall ensure that each Person that is a Representative of the Company immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Takeover Proposal.
(f) For purposes of this Agreement:, "Takeover Proposal" means any proposal or offer for a merger, consolidation or other business combination involving Transom or any proposal or offer to acquire a material equity interest in, or a substantial portion of the assets of, Transom other than by EAI as contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Engineering Animation Inc)
Takeover Proposals. (a) Except as expressly permitted by this Subject to Section 5.2 (including Section 5.2(b)5.5(b), at all times during from the period commencing with the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective TimeClosing Date, the Company and its Subsidiaries Guarantor shall not, nor and shall they authorize or knowingly permit any cause each of its Affiliates and its and their respective Representatives not to, directly or indirectly, :
(i) solicit, initiate or induce the making, submission or announcement of, or knowingly encourage, facilitate or assistencourage any inquiries, offers or proposals relating to a Takeover Proposal or a potential Takeover Proposal, ;
(ii) engage in any discussions or negotiations with, or furnish or otherwise make available to disclose any Person (other than Parent, Sub or any designees of Parent or Sub) any non-non public information relating to the Company Guarantor or any of its SubsidiariesAffiliates to, or afford to give access (for the purposes of any Person (other than Parent, Sub or any designees of Parent or SubTakeover Proposal) access to the business or to the properties, assetsemployees, books, books or records of Guarantor or other non-public informationits Affiliates to, or to any personnel, of the Company or any of its Subsidiaries, facilitate in any such case other manner any effort or attempt by any Person that would reasonably be expected has made or indicated an intention to result in the making, submission or announcement of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) make a Takeover ProposalProposal in each case unless unrelated to the Business; or
(iii) enter into any agreement in principle, arrangement, understanding or (B) any inquiries that would reasonably be expected to lead Contract relating to a Takeover Proposal, (iii) participate or engage in discussions or negotiations with any Person with respect to a Takeover Proposal, (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal or (vi) authorize, commit, publicly propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary set forth in this Agreementforegoing, if at any time prior to 11:59 p.m. New York City time on the date that is thirty-five calendar days after the date hereof, Guarantor (i) may take any of the Company receives a bona fideforegoing actions (having consulted counsel) (x) if it is required to do so pursuant to the City Code on Takeovers and Mergers or by the Takeover Panel, written and unsolicited Takeover Proposal from any Person UKLA or other regulatory authority or (y) in order for its directors to comply with their fiduciary duties and (ii) shall not be prohibited from soliciting, encouraging or engaging in the Company Board determines in good faith (after consultation with its financial advisor discussion of any transaction which is not conditional on the termination of this Agreement and outside legal counsel), that such Takeover Proposal constitutes the consummation of which will not require or would reasonably be expected to lead to a Superior Proposal, cause the Company may (A) furnish non-public information with respect to Shareholders Meeting or the Company and its Subsidiaries, or provide access to the Business or to the properties, assets, books, records or other non-public information, or to any personnel, posting of the Company or any of its Subsidiaries, Circular to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) participate or engage in discussions or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt (and in any event within three Business Days following receipt) written notice of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public information to, such Person, and (2) promptly (and in any event within one Business Day) upon furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent, to the extent such information has not been previously furnished by the Company to Parent. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company shall not be in breach of this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first complying with the procedures set forth herein with respect to any such discussions provided that the Company provides written notice of such communication to Parent within two (2) Business Days of such communicationdelayed.
(c) Without limiting Guarantor confirms that there are no discussions or negotiations (other than negotiations with Buyer) in progress at the generality date of this Agreement or other activities which would constitute a violation of Section 5.5(a) (notwithstanding the provisions of Section 5.5(b)), save for negotiations related to the sale of the foregoing, Parent, Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth enumerated hotel properties listed in this Section 5.2 by any Representative of the Company or any of its Subsidiaries (in the case of any such Representative who is an investment banker, financial advisor, attorney, accountant or other advisor, Schedule 5.5 attached to the extent that such Representative is or has been engaged by the Company in connection with the transactions contemplated hereby) shall be deemed to be a breach of this Section 5.2 by the CompanyDisclosure Letter.
(d) In addition To the extent it is lawfully able to do so, Guarantor will notify Buyer in writing as soon as reasonably practicable after Xxxxx Xxxxxxx, Xxxxx Xxxxxxx or Xxxxx Xxxxxx or any member of the board of directors of Guarantor receive orally or in writing, any inquiries, proposals, solicitations, offers or requests for information from any third party concerning a Takeover Proposal (save for negotiations related solely to the obligations sale of the Company set forth enumerated hotel properties listed in paragraphs Schedule 5.5 attached to the Disclosure Letter) or any approach in relation to an offer for the Guarantor (a), (b) and (c) where such offer is or would be conditional on retaining the Business or is conditioned on the termination of this Section 5.2, the Company shall promptly (and in any event within two Business Days following receipt) notify Parent orally and in writing if the Company Agreement or any of its Subsidiaries, would require or any of its or their respective Representatives, receives (i) any Takeover Proposal, (ii) any request for information that would reasonably be expected or cause the Shareholders Meeting or the posting of the Circular to lead be delayed).
(e) Subject, in each case to a Takeover Proposal applicable Law and any contractual or (iiiother duty of confidence, the notice referred to in Section 5.5(d) any shall disclose the identity of the person making the proposal or inquiry with respect toand, if the directors of the Guarantor are required by fiduciary duties to give such proposal or which would reasonably be expected to lead toinquiry serious consideration, any Takeover Proposal, such notice to include a summary Guarantor will notify Buyer of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communications), and the identity of the Person making proposal. Subject to applicable Law and any such Takeover Proposalcontractual duty of confidentiality in existence on the date hereof, request or inquiry. The Company Guarantor shall keep Parent reasonably Buyer informed on a reasonably current basis on of the status and terms of any such Takeover Proposal, request indication or inquiryrequest, any material modifications to the terms thereof and any other material developments related thereto.
(e) The Company shall, and shall ensure that each Person that is a Representative of the Company immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations withwith Guarantor, Sellers’ Group or its Representatives. Buyer undertakes not to approach any Person relating identified to any Takeover Proposalit under this clause without the prior written consent of Guarantor not to be unreasonably withheld.
(f) For purposes The obligations in this Section 5.5 are subject to the fiduciary duties of the directors of Guarantor and Sellers and their duties and obligations (if any) pursuant to the City Code on Takeovers and Mergers from time to time to the extent provided in Section 5.5(b).
(g) Subject to the limitations contained in this Agreement:, Guarantor may solicit, encourage or engage in any discussions in relation to the disposal or operation of the Retained Business; provided than none of same delays or otherwise affects the consummation of the transactions described herein.
Appears in 1 contract
Takeover Proposals. (a) Except as expressly permitted by this Section 5.2 (including Section 5.2(b)), at all times during the period commencing with the VSA agrees that from and after its execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and through the Effective Time, it shall not and it shall use its reasonable best efforts to cause the Company directors, officers, employees and its Subsidiaries shall notstockholders, nor shall they authorize and all investment bankers, attorneys or knowingly permit any of their respective Representatives other advisors or representatives retained by VSA not to, directly or indirectly, (i) solicit, initiate solicit or induce encourage the making, submission or announcement of, or knowingly encourage, facilitate or assist, a of any Takeover ProposalProposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish or otherwise make available to any Person (other than Parent, Sub or third party any designees of Parent or Sub) any non-public information relating to the Company or any of its Subsidiarieswith respect to, or afford take any other action to any Person (other than Parent, Sub or any designees of Parent or Sub) access to the business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case that would reasonably be expected to result in the making, submission or announcement of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) a Takeover Proposal, or (B) facilitate any inquiries or the making of any proposal that would reasonably be expected to lead to constitutes, a Takeover Proposal, (iii) participate make or engage authorize any statement or recommendation in discussions or negotiations with support of any Person with respect to a Takeover Proposal, or (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of agreement with respect to any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal or (vi) authorize, commit, publicly propose or agree to do any of the foregoingProposal.
(b) Notwithstanding anything to the contrary set forth foregoing paragraph (a), nothing contained in this AgreementSection 6.8 shall prohibit the Board of Directors, if at any time prior to 11:59 p.m. New York City time on the date that is thirty-five calendar days after the date hereof, (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from any Person and (ii) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel), that such Takeover Proposal constitutes executive officers or would reasonably be expected to lead to a Superior Proposal, the Company may (A) furnish non-public information with respect to the Company and its Subsidiariesstockholders of VSA, or provide access to the Business or to the propertiesinvestment bankers, assetsattorneys, books, records or other non-public information, advisors or to any personnel, of the Company or any of its Subsidiaries, to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) participate or engage in discussions or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt (and representatives retained by VSA from participating in any event within three Business Days following receipt) written notice of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public any information to, any third party that makes a Takeover Proposal if all of the following events shall have occurred: (i) EAI has been notified in writing of such PersonTakeover Proposal within 24 hours of VSA's receipt thereof, including the identity of the party making the Takeover Proposal and the specific terms and conditions thereof, and has been given copies of such Takeover Proposal; (2ii) promptly such third party has made a written Takeover Proposal to the Board of Directors of VSA, which Takeover Proposal identifies a price or range of values to be paid and based on the advice of VSA's investment bankers, the Board of Directors of VSA has determined that such Takeover Proposal is financially more favorable to the stockholders of VSA than the terms of the Merger; (iii) VSA's Board of Directors has determined, based on the advice of VSA's investment bankers, that such third party is financially capable of consummating the transactions specified in the Takeover Proposal; and in any event within one Business Day(iv) upon furnishing the Board of Directors of VSA has determined, after consultation with its outside legal counsel, that its fiduciary duties require it to furnish information to and negotiate with such third party. Notwithstanding the foregoing, VSA shall not provide any non-public information to such Person, third party unless (x) prior to the Company furnishes date thereof VSA has provided such information to EAI; (y) VSA has notified EAI in advance of any such proposed disclosure of non-public information and has provided EAI with a description of the information VSA intends to disclose; and (z) VSA provides such non-public information pursuant to Parent, a nondisclosure agreement in a form satisfactory to the extent such information has not been previously furnished by the Company to Parent. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company shall not be in breach of this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first complying with the procedures set forth herein with respect to any such discussions provided that the Company provides written notice of such communication to Parent within two (2) Business Days of such communicationEAI.
(c) Without limiting In addition to the generality foregoing requirements, VSA shall not accept or enter into any agreement concerning a Takeover Proposal until at least 48 hours after EAI's receipt of a copy of such Takeover Proposal. Upon compliance with the foregoing, Parent, Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its Subsidiaries (requirements in the case of any such Representative who is an investment bankerforegoing paragraph (b) and this paragraph (c), financial advisor, attorney, accountant or other advisor, VSA shall be entitled to the extent that such Representative is or has been engaged by the Company terminate this Agreement in connection accordance with the transactions contemplated hereby) shall be deemed to be a breach provisions of this Section 5.2 by the Company8.1(d).
(d) In addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 5.2, the Company shall promptly (and in any event within two Business Days following receipt) notify Parent orally and in writing if the Company or any of its Subsidiaries, or any of its or their respective Representatives, receives (i) any Takeover Proposal, (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include a summary of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communications), and the identity of the Person making any such Takeover Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a reasonably current basis on the status and terms of any such Takeover Proposal, request or inquiry, any material modifications to the terms thereof and any other material developments related thereto.
(e) The Company shall, and shall ensure that each Person that is a Representative of the Company immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Takeover Proposal.
(f) For purposes of this Agreement:, "Takeover Proposal" means any proposal or offer for a merger, consolidation or other business combination involving VSA or any proposal or offer to acquire a material equity interest in, or a substantial portion of the assets of, VSA other than by EAI as contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Engineering Animation Inc)
Takeover Proposals. (a) Except as expressly permitted by this Section 5.2 (including Section 5.2(b))6.4, at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company and its Subsidiaries Seller shall not, nor and Seller shall they not authorize or knowingly permit any of their respective Representatives its representatives to, directly initiate, solicit or indirectly, (i) solicit, initiate knowingly encourage or induce the making, submission facilitate inquiries or announcement ofproposals with respect to, or knowingly encourageengage in any negotiations concerning, facilitate or assistprovide any confidential or nonpublic information or data to, a Takeover Proposalor have any discussions with, (ii) furnish or otherwise make available to any Person (other than Parentrelating to, Sub or any designees of Parent or Sub) any non-public information relating Acquisition Proposal; provided that, prior to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Sub or any designees of Parent or Sub) access to the business or to the properties, assets, books, records or other non-public information, or to any personnel, receipt of the Company or any of its SubsidiariesSeller Stockholder Approval but not after, in any the event (1) Seller receives, after the execution of this Agreement, an unsolicited bona fide Acquisition Proposal from a third party and (2) Seller’s Board of Directors concludes in good faith after consulting with its financial advisor that such case that would Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal, and, after considering the makingadvice of outside counsel, submission that failure to take such actions would be reasonably likely to be inconsistent with its fiduciary duties to Seller’s stockholders under Applicable Law, Seller may, and may permit its representatives to, furnish or announcement ofcause to be furnished nonpublic information or data and participate in negotiations or discussions with third parties with respect to such Acquisition Proposal; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement and any nonpublic information provided to such third party shall have previously been provided to Purchaser or for shall be provided to Purchaser prior to or concurrently with the purpose of knowingly encouraging, facilitating or assisting, time it is provided to such third party. Seller shall (A) a Takeover immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any persons other than Purchaser with respect to any Acquisition Proposal, (B) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it or any of its Affiliates or representatives is a party and (C) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal.
(b) Neither Seller’s Board of Directors nor any committee thereof shall (i) (A) withdraw (or modify or qualify in any manner adverse to Purchaser) or fail to make the Seller Board Recommendation or (B) any inquiries that would reasonably be expected to lead to a Takeover Proposaladopt, (iii) participate or engage in discussions or negotiations with any Person with respect to a Takeover Proposalapprove, (iv) approverecommend, endorse or recommend a Takeover Proposal, otherwise declare advisable the adoption of any Acquisition Proposal or (vii) cause or permit Seller to enter into any letter of intent, memorandum of understanding understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract agreement constituting or related to any Acquisition Proposal (other than a confidentiality agreement permitted by the terms of Section 6.4(a)) (a “Seller Subsequent Determination”). Notwithstanding the foregoing, prior to the receipt of the Seller Stockholder Approval and subject to compliance with Section 6.4(e), the Board of Directors may make a Seller Subsequent Determination if, but only if, the Board of Directors has reasonably determined in good faith, after consultation with and having considered the advice of outside legal counsel, either that an Acquisition Proposal constitutes a Superior Proposal and the failure to make a Seller Subsequent Determination would reasonably be likely to be inconsistent with its fiduciary duties to Seller’s stockholders under Applicable Law.
(c) In the event Seller or any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover of its representatives receives (i) any Acquisition Proposal or (vi) authorize, commit, publicly propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary set forth in this Agreement, if at any time prior to 11:59 p.m. New York City time on the date that is thirty-five calendar days after the date hereof, (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from any Person and (ii) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel), that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, the Company may (A) furnish any request for non-public information with respect to the Company and its Subsidiaries, or provide access to the Business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) participate or engage in discussions negotiations that the Board of Directors reasonably believe is reasonably likely to lead to or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover that contemplates an Acquisition Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt Seller promptly (and in any event within three two Business Days following of receipt) written notice shall advise Purchaser in writing of the identity existence of such Person and a summary of items (i) or (ii), together with the material terms and conditions of such Takeover Acquisition Proposal or request and the identity of the Person making any such Acquisition Proposal or request. Seller shall keep Purchaser reasonably well informed in all material respects of the status (including a copy, if made in writingafter the occurrence of any material amendment or modification) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public information to, such Person, and (2) promptly (and in any event within one Business Day) upon furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent, to the extent such information has not been previously furnished by the Company to Parent. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company shall not be in breach of this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first complying with the procedures set forth herein with respect to any such discussions provided that the Company provides written notice of such communication to Parent within two (2) Business Days of such communication.
(c) Acquisition Proposal or request. Without limiting the generality any of the foregoing, Parent, Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its Subsidiaries (in the case of any such Representative who is an investment banker, financial advisor, attorney, accountant or other advisor, to the extent that such Representative is or has been engaged by the Company in connection with the transactions contemplated hereby) shall be deemed to be a breach of this Section 5.2 by the Company.
(d) In addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 5.2, the Company Seller shall promptly (and in any event within two Business Days following receiptDays) notify Parent orally and Purchaser in writing if the Company it determines to begin providing non-public information or any of its Subsidiaries, or any of its or their respective Representatives, receives (ito engage in negotiations concerning an Acquisition Proposal pursuant to Sections 6.4(a) any Takeover Proposal, (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include a summary of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communicationsb), and the identity of the Person making any such Takeover Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a reasonably current basis on the status and terms of any such Takeover Proposal, request or inquiry, any material modifications to the terms thereof and any other material developments related thereto.
(e) The Company shall, and shall ensure that each Person that is a Representative of the Company immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Takeover Proposal.
(fd) For purposes of this Agreement:
Appears in 1 contract
Takeover Proposals. (a) Except as expressly permitted by this Section 5.2 (including Section 5.2(b)), at all times during the period commencing with the Antenna agrees that from and after its execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and through the Effective Time, the Company and its Subsidiaries it shall not, nor shall they authorize or knowingly it permit any of their respective Representatives the Antenna Subsidiaries to, directly and it shall use its best efforts to cause the directors, officers, employees and stockholders, and all investment bankers, attorneys or indirectlyother advisors or representatives retained by Antenna or any of the Antenna Subsidiaries not to, (i) solicit, initiate solicit or induce encourage the making, submission or announcement of, or knowingly encourage, facilitate or assist, a of any Takeover ProposalProposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish or otherwise make available to any Person (other than Parent, Sub or third party any designees of Parent or Sub) any non-public information relating to the Company or any of its Subsidiarieswith respect to, or afford take any other action to any Person (other than Parent, Sub or any designees of Parent or Sub) access to the business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case that would reasonably be expected to result in the making, submission or announcement of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) a Takeover Proposal, or (B) facilitate any inquiries or the making of any proposal that would reasonably be expected to lead to constitutes, a Takeover Proposal, (iii) participate make or engage authorize any statement or recommendation in discussions support of any Takeover Proposal or negotiations with any Person with respect to a Takeover Proposal, (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of agreement with respect to any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal or (vi) authorize, commit, publicly propose or agree to do any of the foregoingProposal.
(b) Notwithstanding anything to the contrary set forth foregoing paragraph (a), nothing contained in this AgreementSection 6.8 shall prohibit the Board of Directors, if at any time prior to 11:59 p.m. New York City time on the date that is thirty-five calendar days after the date hereof, (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from any Person and (ii) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel), that such Takeover Proposal constitutes executive officers or would reasonably be expected to lead to a Superior Proposal, the Company may (A) furnish non-public information with respect to the Company and its Subsidiariesstockholders of Antenna, or provide access to the Business or to the propertiesinvestment bankers, assetsattorneys, books, records or other non-public information, advisors or to any personnel, of the Company or any of its Subsidiaries, to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) participate or engage in discussions or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt (and representatives retained by Antenna from participating in any event within three Business Days following receipt) written notice of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public any information to, any third party that makes a Takeover Proposal if all of the following events shall have occurred: (i) Andrew has been notified in xxxxxng of such PersonTakeover Proposal within 24 hours of Antenna's receipt thereof, including the identity of the party making the Takeover Proposal and the specific terms and conditions thereof, and has been given copies of such Takeover Proposal; (2ii) promptly such third party has made a written Takeover Proposal to the Board of Directors of Antenna, which Takeover Proposal identifies a price or range of values to be paid and based on the advice of Antenna's investment bankers, the Board of Directors of Antenna has determined that such Takeover Proposal is financially more favorable to the stockholders of Antenna than the terms of the Merger; (iii) Antenna's Board of Directors has determined, based on the advice of Antenna's investment bankers, that such third party is financially capable of consummating the transactions specified in the Takeover Proposal; and in any event within one Business Day(iv) upon furnishing the Board of Directors of Antenna has determined, after consultation with its outside legal counsel, that its fiduciary duties require it to furnish information to and negotiate with such third party. Notwithstanding the foregoing, Antenna shall not provide any non-public information to such Person, third party unless (x) prior to the Company furnishes date thereof Antenna has provided such information to Andrew; (y) Antenna has notxxxxx Andrew in advance of any suxx xxxposed disclosure of non-public information and has provided Andrew with a description ox xxx information Antenna intends to disclose; and (z) Antenna provides such non-public information pursuant to Parent, to a nondisclosure agreement with terms which are at least as restrictive as the extent such information has not been previously furnished by the Company to Parent. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company shall not be in breach of this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first complying with the procedures set forth herein with respect to any such discussions provided that the Company provides written notice of such communication to Parent within two (2) Business Days of such communicationConfidentiality Agreement.
(c) Without limiting In addition to the generality foregoing requirements, Antenna shall not accept or enter into any agreement concerning a Takeover Proposal until at least 48 hours after Andrew's receipt of a copy of such Takeover Proposal. Upon compliance with the foregoing, Parent, Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its Subsidiaries (requirements in the case of any such Representative who is an investment bankerforegoing paragraph (b) and this paragraph (c), financial advisor, attorney, accountant or other advisor, Antenna shall be entitled to the extent that such Representative is or has been engaged by the Company terminate this Agreement in connection accordance with the transactions contemplated hereby) shall be deemed to be a breach provisions of this Section 5.2 by the Company8.1(d).
(d) In addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 5.2, the Company shall promptly (and in any event within two Business Days following receipt) notify Parent orally and in writing if the Company or any of its Subsidiaries, or any of its or their respective Representatives, receives (i) any Takeover Proposal, (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include a summary of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communications), and the identity of the Person making any such Takeover Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a reasonably current basis on the status and terms of any such Takeover Proposal, request or inquiry, any material modifications to the terms thereof and any other material developments related thereto.
(e) The Company shall, and shall ensure that each Person that is a Representative of the Company immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Takeover Proposal.
(f) For purposes of this Agreement:, "Takeover Proposal" means any proposal or offer for a merger, consolidation or other business combination involving Antenna or any proposal or offer to acquire a material equity interest in, or a substantial portion of the assets of, Antenna or the Antenna Subsidiaries, other than by Andrew as contemplated by txxx Xxreement.
Appears in 1 contract
Samples: Merger Agreement (Andrew Corp)
Takeover Proposals. (a) Except as expressly permitted by this Section 5.2 (including Section 5.2(b)), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the The Company and its Subsidiaries shall not, nor shall they authorize or knowingly it permit any of their respective Representatives its Subsidiaries to, directly nor shall it authorize or indirectlypermit any officer, director or employee of or any financial advisor, attorney or other advisor or representative of, the Company or any of its Subsidiaries to, (i) solicit, initiate or induce encourage the making, submission or announcement of, or knowingly encourage, facilitate or assist, a any Takeover ProposalProposal (as hereafter defined), (ii) furnish or otherwise make available enter into any agreement with respect to any Person Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other than Parentaction to facilitate any inquiries or the making of any proposal that constitutes, Sub or may reasonably be expected to lead to, any designees Takeover Proposal; provided, however, that prior to the Stockholder Meeting (as hereinafter defined), if the Board of Parent or Sub) Directors of the Company reasonably determines the Takeover Proposal constitutes a Superior Proposal (as defined below), then, to the extent required by the fiduciary obligations of the Board of Directors of the Company, as determined in good faith by a majority of the disinterested members thereof after receiving the advice of independent counsel, the Company may, in response to an unsolicited request therefor, furnish information with respect to the Company to, and enter into discussions with, any non-public information relating person pursuant to a customary confidentiality agreement. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any executive officer of the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Sub Subsidiaries or any designees of Parent or Sub) access to the business or to the propertiesfinancial advisor, assets, books, records attorney or other non-public information, advisor or to any personnel, representative of the Company or any of its Subsidiaries, in any whether or not such case that would reasonably be expected person is purporting to result in the making, submission or announcement of, or for the purpose of knowingly encouraging, facilitating or assisting, (A) a Takeover Proposal, or (B) any inquiries that would reasonably be expected to lead to a Takeover Proposal, (iii) participate or engage in discussions or negotiations with any Person with respect to a Takeover Proposal, (iv) approve, endorse or recommend a Takeover Proposal, (v) enter into any letter of intent, memorandum of understanding or other Contract of any kind providing for, contemplating, intended to facilitate or otherwise relating to, a Takeover Proposal or (vi) authorize, commit, publicly propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary set forth in this Agreement, if at any time prior to 11:59 p.m. New York City time act on the date that is thirty-five calendar days after the date hereof, (i) the Company receives a bona fide, written and unsolicited Takeover Proposal from any Person and (ii) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel), that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, the Company may (A) furnish non-public information with respect to the Company and its Subsidiaries, or provide access to the Business or to the properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, to the Person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), and (B) participate or engage in discussions or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal; provided, that, in the case of any action taken pursuant to the preceding clauses (A) or (B), (1) the Company gives Parent prompt (and in any event within three Business Days following receipt) written notice of the identity of such Person and a summary of the material terms and conditions of such Takeover Proposal (including a copy, if made in writing) and of the Company’s participation or engagement in discussions or negotiations with, or furnishing of non-public information to, such Person, and (2) promptly (and in any event within one Business Day) upon furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent, to the extent such information has not been previously furnished by the Company to Parent. For the avoidance of doubt, in the event that a third party contacts the Company or a Representative of the Company or its Affiliates orally or in writing regarding a potential Takeover Proposal, the Company shall not be in breach of this Agreement in any respect to the extent the Company or such Representative responds to such third party that it is bound by the terms of this Agreement and is unable to discuss or respond to such matters without first complying with the procedures set forth herein with respect to any such discussions provided that the Company provides written notice of such communication to Parent within two (2) Business Days of such communication.
(c) Without limiting the generality of the foregoing, Parent, Sub and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this Section 5.2 by any Representative behalf of the Company or any of its Subsidiaries (in the case of any such Representative who is an investment bankeror otherwise, financial advisor, attorney, accountant or other advisor, to the extent that such Representative is or has been engaged by the Company in connection with the transactions contemplated hereby) shall be deemed to be a breach of this Section 5.2 4.2(a) by the Company.
(d) In addition . For purposes of this Agreement, "Takeover Proposal" means any proposal for a merger or other business combination involving the Company or any of its Subsidiaries or any proposal or offer to the obligations acquire in any manner, directly or indirectly, a substantial equity interest in, a substantial portion of the Company set forth in paragraphs (a)voting securities of, (b) and (c) or a substantial portion of this Section 5.2, the Company shall promptly (and in any event within two Business Days following receipt) notify Parent orally and in writing if assets of the Company or any of its Subsidiaries, or any of its or their respective Representativesother than the transactions contemplated by this Agreement, receives (i) any Takeover and "Superior Proposal, (ii) any request for information that would reasonably be expected to lead to " means a bona fide Takeover Proposal or (iii) any inquiry with respect to, or made by a third party which would reasonably be expected to lead to, any Takeover Proposal, such notice to include a summary majority of the material terms and conditions of such Takeover Proposal, request or inquiry (including copies of all documents and written communications, and written summaries of all oral communications), and the identity disinterested members of the Person making any such Takeover Proposal, request or inquiry. The Company shall keep Parent reasonably informed on a reasonably current basis on the status and terms Board of any such Takeover Proposal, request or inquiry, any material modifications to the terms thereof and any other material developments related thereto.
(e) The Company shall, and shall ensure that each Person that is a Representative Directors of the Company immediately cease and cause determines in its reasonable good faith judgment to be terminated any existing solicitation ofmore favorable to the Company's stockholders than the Merger (after receiving the written opinion, with only customary qualifications, of the Company's independent financial advisor that the value of the consideration provided for in such proposal exceeds the value of the consideration provided for in the Merger) and for which financing, to the extent required, is then committed or discussions or negotiations withwhich, any Person relating in the reasonable good faith judgment of a majority of such disinterested members (after receiving the written advice of the Company's independent financial advisor), is highly likely to any Takeover Proposalbe financed by such third party.
(f) For purposes of this Agreement:
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