Third Party Proposals. (a) Except as expressly permitted by this Section 5.3, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall not, and shall cause the Company Subsidiaries and its and their officers, directors and employees to not, and shall otherwise use reasonable best efforts to ensure that the Company’s and the Company Subsidiaries’ accountants, legal counsel, financial advisors and other similar representatives shall not, directly or indirectly through another Person, (i) solicit or initiate, or knowingly encourage any Takeover Proposal or any inquiries regarding the submission of any Takeover Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Third Party any confidential information with respect to or in connection with, or knowingly facilitate or otherwise knowingly cooperate with, any Takeover Proposal or any inquiry that may reasonably be expected to lead to a Takeover Proposal, (iii) enter into any agreement with respect to any Takeover Proposal or approve or resolve to approve any Takeover Proposal, or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party existing on the date hereof; provided, however, that nothing contained in this Section 5.3 or any other provision of this Agreement shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company Shareholders a position with respect to a tender or exchange offer by a Third Party contemplated by Rule 14e-2(a) or making a statement required under Rule 14d-9 under the Exchange Act or (B) making any disclosure to the Company Shareholders if the Company Board has determined, in good faith, after consultation with outside counsel, that the failure to make any such disclosure is inconsistent with its fiduciary duties under applicable Law, provided, that (1) compliance with such rules shall in no way limit Parent’s right to terminate this Agreement pursuant to Section 8.1(b)(ii) hereof and payment of the Termination Fee pursuant to Section 8.3(c) or Section 8.3(d) and (2) in no event shall the Company or the Company Board (or any committee thereof), except as permitted by Section 5.3(e), take, or agree or resolve to take, any of the following actions: withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation or make or cause to be made through the Company’s or the Company Subsidiaries’ Representatives any public statement proposing or announcing an intention to withdraw or modify in any manner adverse to Parent or Merger Sub the Company Board Recommendation (any such action, a “Change in Recommendation”) (it being understood that any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act shall not be deemed a Change in Recommendation). The Company shall, and shall cause its Subsidiaries and the Company Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. (b) Notwithstanding anything to the contrary in this Section 5.3, at any time from the date of this Agreement and prior to obtaining the Company Shareholder Approval, if the Company has received from any Third Party a bona fide written Takeover Proposal made after the date of this Agreement that was not solicited in violation of and did not otherwise result from a breach of this Section 5.3, (i) the Company may contact such Third Party or its advisors for the purpose of clarifying such Takeover Proposal and the material terms and conditions thereof to the extent required to determine whether such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, (ii) the Company may negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive on such Third Party as the Confidentiality Agreement is on Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), and (iii) the Company may furnish information concerning its business, properties or assets to such Third Party pursuant to an Acceptable Confidentiality Agreement, provided, that all such information (to the extent not previously provided to Parent) is provided or made available to Parent prior to or substantially concurrent with the time it is provided to such Third Party, and may negotiate and participate in discussions and negotiations with such Third Party concerning such Takeover Proposal, if such Third Party has submitted a Superior Proposal, or a Takeover Proposal that the Company Board determines in good faith (after consultation with its financial advisor and outside counsel) is reasonably likely to constitute or lead to a Superior Proposal, if in connection with the foregoing clauses (i), (ii) and (iii), (A) the Company Board determines in good faith (after consultation with its outside legal advisors) that the failure to take such action would be inconsistent with its fiduciary duties to the Company Shareholders, and (B) prior to taking such action, the Company shall provide written notice thereof to Parent. (c) The Company will promptly (and in any event within 24 hours after receipt) advise Parent in writing of the receipt by the Company of any Takeover Proposal after the date of this Agreement, the material terms and conditions of any such Takeover Proposal (including any material changes thereto) and the identity of the Person making any such Takeover Proposal. The Company will keep Parent reasonably informed in all material respects of the status and details (including any material change to the terms thereof) of any such Takeover Proposal. (d) As used in this Agreement, the following terms have the meanings set forth below:
Appears in 2 contracts
Samples: Merger Agreement (Tyco International LTD /Ber/), Merger Agreement (Brink's Home Security Holdings, Inc.)
Third Party Proposals. (a) Except The Company agrees that, except as expressly permitted contemplated by this Section 5.3Agreement, from the date neither it nor any of this Agreement until the Effective Time orits Subsidiaries shall, if earlier, the termination of this Agreement in accordance with Article VIII, and the Company shall notshall, and shall cause the Company its Subsidiaries and its and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors and employees to notdirectors, and shall otherwise use reasonable best efforts to ensure that the Company’s and the Company Subsidiaries’ investment bankers, attorneys, accountants, legal counselfinancial advisors, financial advisors agents and other similar representatives shall not, not to (i) directly or indirectly through another Person, (i) solicit or initiate, or solicit, knowingly encourage any Takeover Proposal or facilitate (including by way of furnishing information) any inquiries regarding or the making or submission of any Takeover proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Third Party any confidential information with respect to or in connection with, or knowingly facilitate disclose any non-public information or otherwise knowingly cooperate withdata relating to the Company or any of its Subsidiaries or afford access to the properties, books or records of the Company or any Takeover of its Subsidiaries to any Person that has made an Acquisition Proposal or to any inquiry Person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that may is intended to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.4) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a Takeover Proposalbreach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and the Company Board may take any actions described in clause (iiiii) enter into any agreement of this Section 6.4(a) with respect to a third party if at any Takeover time prior to the Special Meeting (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or approve facilitated by the Company or resolve to approve any Takeover of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes a Superior Proposal, or (iv) waive, terminate, modify or fail provided that the Company shall not deliver any information to enforce any provision of any “standstill” or similar obligation of any Third Party existing on the date hereof; provided, however, that nothing such third party without entering into an Acceptable Confidentiality Agreement. Nothing contained in this Section 5.3 or any other provision of this Agreement 6.4 shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company Shareholders Company’s shareholders a position with respect to a tender or exchange offer by a Third Party contemplated by Rule 14e-2(a) or making a statement required under Rule 14d-9 under the Exchange Act or (B) making any disclosure an Acquisition Proposal to the Company Shareholders if extent required by applicable Law.
(b) Neither (i) the Company Board has determined, in good faith, after consultation with outside counsel, that the failure to make nor any such disclosure is inconsistent with its fiduciary duties under applicable Law, provided, that committee thereof shall directly or indirectly (1A) compliance with such rules shall in no way limit Parent’s right to terminate this Agreement pursuant to Section 8.1(b)(ii) hereof and payment of the Termination Fee pursuant to Section 8.3(c) or Section 8.3(d) and (2) in no event shall the Company or the Company Board withdraw (or any committee thereof), except as permitted by Section 5.3(e), take, amend or agree or resolve to take, any of the following actions: withdraw or modify, modify in a manner adverse to Parent the Buyer), or publicly propose to withdraw (or amend or modify in a manner adverse to the Buyer), the approval, recommendation or declaration of advisability by the Company Board or any such committee thereof of this Agreement, the Merger Subor the other transactions contemplated by this Agreement in connection with the receipt of any Acquisition Proposal or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Acquisition Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) nor (ii) shall the Company or any of its Subsidiaries execute or enter into an Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Special Meeting, and subject to the Company’s compliance at all times with the provisions of this Section 6.4, in response to a Superior Proposal, the Company Board may make a Company Adverse Recommendation or make or cause to be made through the Company’s or Change; provided, however, that the Company Subsidiaries’ Representatives any public statement proposing or announcing an intention shall not be entitled to withdraw or modify exercise its right to make a Company Adverse Recommendation Change in any manner adverse response to Parent or Merger Sub a Superior Proposal (X) until three Business Days after the Company provides written notice to the Buyer (a “Company Notice”) advising the Buyer that the Company Board Recommendation (any such action, or a “Change in Recommendation”) (it being understood that any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act shall not be deemed a Change in Recommendation). The Company shall, and shall cause its Subsidiaries and the Company Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished.
(b) Notwithstanding anything to the contrary in this Section 5.3, at any time from the date of this Agreement and prior to obtaining the Company Shareholder Approval, if the Company committee thereof has received from any Third Party a bona fide written Takeover Proposal made after the date of this Agreement that was not solicited in violation of and did not otherwise result from a breach of this Section 5.3Superior Proposal, (i) the Company may contact such Third Party or its advisors for the purpose of clarifying such Takeover Proposal and specifying the material terms and conditions thereof to the extent required to determine whether of such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, and identifying the Person or group making such Superior Proposal and (iiY) if during such three Business Day period, the Company may negotiate Buyer proposes any alternative transaction (including any modifications to the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive on such Third Party as the Confidentiality Agreement is on Parent and its Affiliates (an “Acceptable Confidentiality of this Agreement”), and (iii) the Company may furnish information concerning its business, properties or assets to such Third Party pursuant to an Acceptable Confidentiality Agreement, provided, that all such information (to the extent not previously provided to Parent) is provided or made available to Parent prior to or substantially concurrent with the time it is provided to such Third Party, and may negotiate and participate in discussions and negotiations with such Third Party concerning such Takeover Proposal, if such Third Party has submitted a Superior Proposal, or a Takeover Proposal that unless the Company Board determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) is reasonably likely to constitute or lead to a Superior Proposal, if in connection with the foregoing clauses (i)and taking into account all financial, (ii) legal, and (iii), (A) the Company Board determines in good faith (after consultation with its outside legal advisorsregulatory terms and conditions of such alternative transaction proposal) that the failure to take such action would be inconsistent with its fiduciary duties alternative transaction proposal is not at least as favorable to the Company Shareholders, and its shareholders from a financial point of view as the Superior Proposal (B) prior to taking such action, it being understood that any change in the financial or other material terms of a Superior Proposal shall require a new Company shall provide written notice thereof to ParentNotice and a new three Business Day period under this Section 6.4(b)).
(c) The In addition to the obligations of the Company will set forth in paragraphs (a) and (b) of this Section 6.4, as promptly (and in any event within 24 hours as practicable after receipt) receipt thereof, the Company shall advise Parent the Buyer in writing of any request for information or any Acquisition Proposal received from any Person, or any inquiry, discussions or negotiations with respect to any Acquisition Proposal, and the receipt by the Company of any Takeover Proposal after the date of this Agreement, the material terms and conditions of such request, Acquisition Proposal, inquiry, discussions or negotiations, and the Company shall promptly provide to the Buyer copies of any such Takeover Proposal (including written materials received by the Company in connection with any material changes thereto) of the foregoing, and the identity of the Person or group making any such Takeover Proposalrequest, Acquisition Proposal or inquiry or with whom any discussions or negotiations are taking place. The Company will agrees that it shall simultaneously provide to the Buyer any non-public information concerning the Company or its Subsidiaries provided to any other Person or group in connection with any Acquisition Proposal which was not previously provided to the Buyer. The Company shall keep Parent reasonably the Buyer fully informed in all material respects of the status and details of any Acquisition Proposals (including the identity of the parties and price involved and any changes to any material change terms and conditions thereof). The Company agrees not to the terms thereof) of release any such Takeover Proposalthird party from, or waive any provisions of, any confidentiality or standstill agreement to which it is a party.
(d) As used in Immediately after the execution and delivery of this Agreement, the following terms have Company will, and will cause its Subsidiaries and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company agrees that it shall (i) take the meanings set forth below:necessary steps to promptly inform its officers, directors, investments bankers, attorneys, accountants, financial advisors, agents or other representatives involved in the transactions contemplated by this Agreement of the obligations undertaken in this Section 6.4 and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (which destruction shall be certified in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on the Company’s behalf.
(e) For purposes of Sections 6.4 and 8.1(g):
Appears in 2 contracts
Samples: Merger Agreement (Access Anytime Bancorp Inc), Merger Agreement (First State Bancorporation)
Third Party Proposals. (a) Except No member of the Price Group shall, nor shall they, as expressly permitted by this Section 5.3applicable, from the date permit any of this Agreement until the Effective Time ortheir respective Subsidiaries, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall not, and shall cause the Company Subsidiaries and its and their officers, directors and employees to notdirectors, and shall otherwise use reasonable best efforts to ensure that the Company’s and the Company Subsidiaries’ accountantsemployees, legal counselrepresentatives or agents, financial advisors and other similar representatives shall notincluding any investment banker, attorney, consultant or accountant engaged by any of them to, directly or indirectly through another Person, (i) solicit solicit, initiate or initiateencourage any inquiry or proposal that constitutes, or knowingly encourage any Takeover Proposal or any inquiries regarding the submission of any Takeover Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Third Party any confidential information with respect to or in connection with, or knowingly facilitate or otherwise knowingly cooperate with, any Takeover Proposal or any inquiry that may reasonably be expected to lead to, a proposal or offer to enter into any merger, consolidation, amalgamation, refinancing of debt (other than as contemplated by this Agreement), acquisition of any equity interest, prepackaged bankruptcy plan, plan of liquidation or dissolution, recapitalization, sale and/or purchase of all or substantially all of the assets of AGC, GEI or any of the Transferred Entities or any similar business combination, acquire any interest in, dispose of or otherwise result in a Takeover change of control of any of the Price Entities or any of their respective material assets (any of the foregoing inquiries or proposals, an "ACQUISITION PROPOSAL"); (ii) engage in negotiations or discussions concerning, or provide any information to any person or entity relating to, an Acquisition Proposal, ; or (iii) enter into any agreement with respect agree to any Takeover Proposal Acquisition Proposal. Each member of the Price Group shall notify NGP promptly (but in any event within 24 hours) after receipt of any Acquisition Proposal, any amendment or approve or resolve modification to approve any Takeover an Acquisition Proposal, or (iv) waive, terminate, modify any request for nonpublic information relating to the Price Group in connection with an Acquisition Proposal. Such notice to NGP shall be made in writing and shall indicate the identity of the person making the Acquisition Proposal or fail to enforce any provision requesting nonpublic information and the terms of any “standstill” such Acquisition Proposal or similar obligation modification or amendment to an Acquisition Proposal. It is understood that any breach of any Third Party existing on the date hereof; provided, however, that nothing contained restrictions set forth in this Section 5.3 or 10.5 by the Prices, any other provision executive officer of this Agreement shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company Shareholders a position with respect to a tender or exchange offer by a Third Party contemplated by Rule 14e-2(a) or making a statement required under Rule 14d-9 under the Exchange Act or (B) making any disclosure to the Company Shareholders if the Company Board has determined, in good faith, after consultation with outside counsel, that the failure to make any such disclosure is inconsistent with its fiduciary duties under applicable Law, provided, that (1) compliance with such rules shall in no way limit Parent’s right to terminate this Agreement pursuant to Section 8.1(b)(ii) hereof and payment member of the Termination Fee pursuant to Section 8.3(c) or Section 8.3(d) and (2) in no event shall the Company or the Company Board (or any committee thereof), except as permitted by Section 5.3(e), take, or agree or resolve to take, any of the following actions: withdraw Price Entities or modifyany investment banker, in a manner adverse to Parent attorney, consultant, accountant or Merger Subother agent, advisor or representative of the Company Board Recommendation Prices or make or cause the Price Entities, shall be deemed to be made through the Company’s or the Company Subsidiaries’ Representatives any public statement proposing or announcing an intention to withdraw or modify in any manner adverse to Parent or Merger Sub the Company Board Recommendation (any such action, a “Change in Recommendation”) (it being understood that any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act shall not be deemed a Change in Recommendation). The Company shall, and shall cause its Subsidiaries and the Company Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished.
(b) Notwithstanding anything to the contrary in this Section 5.3, at any time from the date of this Agreement and prior to obtaining the Company Shareholder Approval, if the Company has received from any Third Party a bona fide written Takeover Proposal made after the date of this Agreement that was not solicited in violation of and did not otherwise result from a breach of this Section 5.3, (i) the Company may contact such Third Party or its advisors for the purpose of clarifying such Takeover Proposal and the material terms and conditions thereof to the extent required to determine whether such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, (ii) the Company may negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive on such Third Party as the Confidentiality Agreement is on Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), and (iii) the Company may furnish information concerning its business, properties or assets to such Third Party pursuant to an Acceptable Confidentiality Agreement, provided, that all such information (to the extent not previously provided to Parent) is provided or made available to Parent prior to or substantially concurrent with the time it is provided to such Third Party, and may negotiate and participate in discussions and negotiations with such Third Party concerning such Takeover Proposal, if such Third Party has submitted a Superior Proposal, or a Takeover Proposal that the Company Board determines in good faith (after consultation with its financial advisor and outside counsel) is reasonably likely to constitute or lead to a Superior Proposal, if in connection with the foregoing clauses (i), (ii) and (iii), (A) the Company Board determines in good faith (after consultation with its outside legal advisors) that the failure to take such action would be inconsistent with its fiduciary duties to the Company Shareholders, and (B) prior to taking such action, the Company shall provide written notice thereof to Parent.
(c) The Company will promptly (and in any event within 24 hours after receipt) advise Parent in writing of the receipt by the Company of any Takeover Proposal after the date of this Agreement, the material terms and conditions of any such Takeover Proposal (including any material changes thereto) and the identity of the Person making any such Takeover Proposal. The Company will keep Parent reasonably informed in all material respects of the status and details (including any material change to the terms thereof) of any such Takeover Proposal.
(d) As used in this Agreement, the following terms have the meanings set forth below:10.5
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (National Golf Properties Inc)
Third Party Proposals. (a) Except as expressly permitted by this Section 5.3, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the The Company shall not, and shall cause the Company Subsidiaries and its and their officers, directors and employees to not, and shall otherwise use reasonable best efforts to ensure that the Company’s and the Company Subsidiaries’ accountants, legal counsel, financial advisors and other similar representatives shall not, directly or indirectly through another Person, (i) solicit or initiate, or knowingly encourage any Takeover Proposal or any inquiries regarding the submission of any Takeover Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Third Party any confidential information with respect to or in connection with, or knowingly facilitate or otherwise knowingly cooperate with, any Takeover Proposal or any inquiry that may reasonably be expected to lead to a Takeover Proposal, (iii) enter into any agreement with respect to any Takeover Proposal or approve or resolve to approve any Takeover Proposal, or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party existing on the date hereof; provided, however, that nothing contained in this Section 5.3 or any other provision of this Agreement shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company Shareholders a position with respect to a tender or exchange offer by a Third Party contemplated by Rule 14e-2(a) or making a statement required under Rule 14d-9 under the Exchange Act or (B) making any disclosure to the Company Shareholders if the Company Board has determined, in good faith, after consultation with outside counsel, that the failure to make any such disclosure is inconsistent with its fiduciary duties under applicable Law, provided, that (1) compliance with such rules shall in no way limit Parent’s right to terminate this Agreement pursuant to Section 8.1(b)(ii) hereof and payment of the Termination Fee pursuant to Section 8.3(c) or Section 8.3(d) and (2) in no event shall the Company or the Company Board (or any committee thereof)agrees that, except as permitted expressly contemplated by Section 5.3(e)this Agreement, take, or agree or resolve to take, neither it nor any of its Subsidiaries shall, and the following actions: withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation or make or cause to be made through the Company’s or the Company Subsidiaries’ Representatives any public statement proposing or announcing an intention to withdraw or modify in any manner adverse to Parent or Merger Sub the Company Board Recommendation (any such action, a “Change in Recommendation”) (it being understood that any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act shall not be deemed a Change in Recommendation). The Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Company Representatives Exchange Act) to, immediately cease cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and cause other representatives not to, (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to be terminated all existing lead to, an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with with, or disclose any Third Party conducted prior non-public information or data relating to the date Company or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any Person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.4) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement with respect to any Takeover Proposal and request by the prompt return or destruction of all confidential information previously furnished.
(b) Company. Notwithstanding anything to the contrary in this Agreement, prior to the Special Meeting the Company and its Board of Directors may take any actions described in clause (ii) of this Section 5.36.4(a) with respect to a third party if at any time prior to the Special Meeting (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Nothing contained in this Section 6.4 shall prohibit the Company or its Board of Directors from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal to the extent required by applicable Law.
(b) Neither (i) the Company’s Board of Directors nor any committee thereof shall directly or indirectly (A) withdraw (or amend or modify in a manner adverse to the Buyer), or publicly propose to withdraw (or amend or modify in a manner adverse to the Buyer), the approval, recommendation or declaration of advisability by the Company’s Board of Directors or any such committee thereof of this Agreement, the Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Acquisition Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) nor (ii) shall the Company or any of its Subsidiaries execute or enter into an Acquisition Agreement. Notwithstanding the foregoing, at any time from the date of this Agreement and prior to obtaining the Company Shareholder ApprovalSpecial Meeting, if and subject to the Company has received from any Third Party a bona fide written Takeover Proposal made after Company’s compliance at all times with the date of this Agreement that was not solicited in violation of and did not otherwise result from a breach provisions of this Section 5.36.4, (i) in response to a Superior Proposal, the Company Board may contact such Third Party make a Company Adverse Recommendation Change; provided, however, that the Company shall not be entitled to exercise its right to make a Company Adverse Recommendation Change in response to a Superior Proposal (X) until three Business Days after the Company provides written notice to the Buyer (a “Company Notice”) advising the Buyer that the Company’s Board of Directors or its advisors for the purpose of clarifying such Takeover Proposal and a committee thereof has received a Superior Proposal, specifying the material terms and conditions thereof to the extent required to determine whether of such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, and identifying the Person or group making such Superior Proposal and (iiY) if during such three Business Day period, the Company may negotiate Buyer proposes any alternative transaction (including any modifications to the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive on such Third Party as the Confidentiality Agreement is on Parent and its Affiliates (an “Acceptable Confidentiality of this Agreement”), and (iii) unless the Company may furnish information concerning its business, properties or assets to such Third Party pursuant to an Acceptable Confidentiality Agreement, provided, that all such information (to the extent not previously provided to Parent) is provided or made available to Parent prior to or substantially concurrent with the time it is provided to such Third Party, and may negotiate and participate in discussions and negotiations with such Third Party concerning such Takeover Proposal, if such Third Party has submitted a Superior Proposal, or a Takeover Proposal that the Company Company’s Board of Directors determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) is reasonably likely to constitute or lead to a Superior Proposal, if in connection with the foregoing clauses (i)and taking into account all financial, (ii) legal, and (iii), (A) the Company Board determines in good faith (after consultation with its outside legal advisorsregulatory terms and conditions of such alternative transaction proposal) that the failure to take such action would be inconsistent with its fiduciary duties alternative transaction proposal is not at least as favorable to the Company Shareholders, and its stockholders from a financial point of view as the Superior Proposal (B) prior to taking such action, it being understood that any change in the financial or other material terms of a Superior Proposal shall require a new Company shall provide written notice thereof to ParentNotice and a new three Business Day period under this Section 6.4(b)).
(c) The In addition to the obligations of the Company will set forth in paragraphs (a) and (b) of this Section 6.4, as promptly (and in any event within 24 hours as practicable after receipt) receipt thereof, the Company shall advise Parent the Buyer in writing of any request for information or any Acquisition Proposal received from any Person, or any inquiry, discussions or negotiations with respect to any Acquisition Proposal, and the receipt by the Company of any Takeover Proposal after the date of this Agreement, the material terms and conditions of such request, Acquisition Proposal, inquiry, discussions or negotiations, and the Company shall promptly provide to the Buyer copies of any such Takeover Proposal (including written materials received by the Company in connection with any material changes thereto) of the foregoing, and the identity of the Person or group making any such Takeover Proposalrequest, Acquisition Proposal or inquiry or with whom any discussions or negotiations are taking place. The Company will agrees that it shall simultaneously provide to the Buyer any non-public information concerning the Company or its Subsidiaries provided to any other Person or group in connection with any Acquisition Proposal which was not previously provided to the Buyer. The Company shall keep Parent reasonably the Buyer fully informed in all material respects of the status and details of any Acquisition Proposals (including the identity of the parties and price involved and any changes to any material change terms and conditions thereof). The Company agrees not to the terms thereof) of release any such Takeover Proposalthird party from, or waive any provisions of, any confidentiality or standstill agreement to which it is a party.
(d) As used in Immediately after the execution and delivery of this Agreement, the following terms have Company will, and will cause its Subsidiaries and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company agrees that it shall (i) take the meanings set forth below:necessary steps to promptly inform its officers, directors, investments bankers, attorneys, accountants, financial advisors, agents or other representatives involved in the transactions contemplated by this Agreement of the obligations undertaken in this Section 6.4 and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (which destruction shall be certified in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on the Company’s behalf.
(e) For purposes of Sections 6.4 and 8.1(g):
Appears in 1 contract
Third Party Proposals. (a) Except as expressly permitted by this Section 5.3, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the The Company shall not, and shall cause the Company Subsidiaries and its and their officers, directors and employees to not, and shall otherwise use reasonable best efforts to ensure that the Company’s and the Company Subsidiaries’ accountants, legal counsel, financial advisors and other similar representatives shall not, directly or indirectly through another Person, (i) solicit or initiate, or knowingly encourage any Takeover Proposal or any inquiries regarding the submission of any Takeover Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Third Party any confidential information with respect to or in connection with, or knowingly facilitate or otherwise knowingly cooperate with, any Takeover Proposal or any inquiry that may reasonably be expected to lead to a Takeover Proposal, (iii) enter into any agreement with respect to any Takeover Proposal or approve or resolve to approve any Takeover Proposal, or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party existing on the date hereof; provided, however, that nothing contained in this Section 5.3 or any other provision of this Agreement shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company Shareholders a position with respect to a tender or exchange offer by a Third Party contemplated by Rule 14e-2(a) or making a statement required under Rule 14d-9 under the Exchange Act or (B) making any disclosure to the Company Shareholders if the Company Board has determined, in good faith, after consultation with outside counsel, that the failure to make any such disclosure is inconsistent with its fiduciary duties under applicable Law, provided, that (1) compliance with such rules shall in no way limit Parent’s right to terminate this Agreement pursuant to Section 8.1(b)(ii) hereof and payment of the Termination Fee pursuant to Section 8.3(c) or Section 8.3(d) and (2) in no event shall the Company or the Company Board (or any committee thereof)agrees that, except as permitted expressly contemplated by Section 5.3(e)this Agreement, take, or agree or resolve to take, neither it nor any of its Subsidiaries shall, and the following actions: withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation or make or cause to be made through the Company’s or the Company Subsidiaries’ Representatives any public statement proposing or announcing an intention to withdraw or modify in any manner adverse to Parent or Merger Sub the Company Board Recommendation (any such action, a “Change in Recommendation”) (it being understood that any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act shall not be deemed a Change in Recommendation). The Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Company Representatives Exchange Act) to, immediately cease cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and cause other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be terminated all existing expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with with, or disclose any Third Party conducted prior non-public information or data relating to the date Company or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any Person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.4) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement with respect to any Takeover Proposal and request by the prompt return or destruction of all confidential information previously furnished.
(b) Company. Notwithstanding anything to the contrary in this Agreement, the Company and its Board of Directors may take any actions described in clause (ii) of this Section 5.36.4(a) with respect to a third party if at any time prior to the Special Meeting (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Nothing contained in this Section 6.4 shall prohibit the Company or its Board of Directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by applicable Law.
(b) Neither (i) the Company’s Board of Directors nor any committee thereof shall directly or indirectly (A) withdraw (or amend or modify in a manner adverse to the Buyer), or publicly propose to withdraw (or amend or modify in a manner adverse to the Buyer), the approval, recommendation or declaration of advisability by the Company’s Board of Directors or any such committee thereof of this Agreement, the Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Acquisition Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) nor (ii) shall the Company or any of its Subsidiaries execute or enter into an Acquisition Agreement. Notwithstanding the foregoing, at any time from the date of this Agreement and prior to obtaining the Company Shareholder ApprovalSpecial Meeting, if and subject to the Company has received from any Third Party a bona fide written Takeover Proposal made after Company’s compliance at all times with the date of this Agreement that was not solicited in violation of and did not otherwise result from a breach provisions of this Section 5.36.4, (i) in response to a Superior Proposal, the Company Board may contact such Third Party make a Company Adverse Recommendation Change; provided, however, that the Company shall not be entitled to exercise its right to make a Company Adverse Recommendation Change in response to a Superior Proposal (X) until three Business Days after the Company provides written notice to the Buyer (a “Company Notice”) advising the Buyer that the Company’s Board of Directors or its advisors for the purpose of clarifying such Takeover Proposal and a committee thereof has received a Superior Proposal, specifying the material terms and conditions thereof to the extent required to determine whether of such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, and identifying the Person or group making such Superior Proposal and (iiY) if during such three Business Day period, the Company may negotiate Buyer proposes any alternative transaction (including any modifications to the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive on such Third Party as the Confidentiality Agreement is on Parent and its Affiliates (an “Acceptable Confidentiality of this Agreement”), and (iii) unless the Company may furnish information concerning its business, properties or assets to such Third Party pursuant to an Acceptable Confidentiality Agreement, provided, that all such information (to the extent not previously provided to Parent) is provided or made available to Parent prior to or substantially concurrent with the time it is provided to such Third Party, and may negotiate and participate in discussions and negotiations with such Third Party concerning such Takeover Proposal, if such Third Party has submitted a Superior Proposal, or a Takeover Proposal that the Company Company’s Board of Directors determines in good faith (after consultation with its financial advisor advisors and outside legal counsel) is reasonably likely to constitute or lead to a Superior Proposal, if in connection with the foregoing clauses (i)and taking into account all financial, (ii) legal, and (iii), (A) the Company Board determines in good faith (after consultation with its outside legal advisorsregulatory terms and conditions of such alternative transaction proposal) that the failure to take such action would be inconsistent with its fiduciary duties alternative transaction proposal is not at least as favorable to the Company Shareholders, and its shareholders from a financial point of view as the Superior Proposal (B) prior to taking such action, it being understood that any change in the financial or other material terms of a Superior Proposal shall require a new Company shall provide written notice thereof to ParentNotice and a new three Business Day period under this Section 6.4(b)).
(c) The In addition to the obligations of the Company will set forth in paragraphs (a) and (b) of this Section 6.4, as promptly (and in any event within 24 hours as practicable after receipt) receipt thereof, the Company shall advise Parent the Buyer in writing of any request for information or any Acquisition Proposal received from any Person, or any inquiry, discussions or negotiations with respect to any Acquisition Proposal, and the receipt by the Company of any Takeover Proposal after the date of this Agreement, the material terms and conditions of such request, Acquisition Proposal, inquiry, discussions or negotiations, and the Company shall promptly provide to the Buyer copies of any such Takeover Proposal (including written materials received by the Company in connection with any material changes thereto) of the foregoing, and the identity of the Person or group making any such Takeover Proposalrequest, Acquisition Proposal or inquiry or with whom any discussions or negotiations are taking place. The Company will agrees that it shall simultaneously provide to the Buyer any non-public information concerning the Company or its Subsidiaries provided to any other Person or group in connection with any Acquisition Proposal which was not previously provided to the Buyer. The Company shall keep Parent reasonably the Buyer fully informed in all material respects of the status and details of any Acquisition Proposals (including the identity of the parties and price involved and any changes to any material change terms and conditions thereof). The Company agrees not to the terms thereof) of release any such Takeover Proposalthird party from, or waive any provisions of, any confidentiality or standstill agreement to which it is a party.
(d) As used in Immediately after the execution and delivery of this Agreement, the following terms have Company will, and will cause its Subsidiaries and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company agrees that it shall (i) take the meanings set forth below:necessary steps to promptly inform its officers, directors, investments bankers, attorneys, accountants, financial advisors, agents or other representatives involved in the transactions contemplated by this Agreement of the obligations undertaken in this Section 6.4 and (ii) request each Person who has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the Company or any portion thereof to return or destroy (which destruction shall be certified in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or on the Company’s behalf.
(e) For purposes of Sections 6.4 and 8.1(g):
Appears in 1 contract
Third Party Proposals. (a) Except No member of the Price Group shall, nor shall they, as expressly permitted by this Section 5.3applicable, from the date permit any of this Agreement until the Effective Time ortheir respective Subsidiaries, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall not, and shall cause the Company Subsidiaries and its and their officers, directors and employees to notdirectors, and shall otherwise use reasonable best efforts to ensure that the Company’s and the Company Subsidiaries’ accountantsemployees, legal counseladvisors, financial advisors and other similar representatives shall notor agents, including any investment banker, attorney, consultant or accountant engaged by any of them to, directly or indirectly through another Person, (i) solicit solicit, initiate or initiateencourage any inquiry or proposal that constitutes, or knowingly encourage any Takeover Proposal or any inquiries regarding the submission of any Takeover Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Third Party any confidential information with respect to or in connection with, or knowingly facilitate or otherwise knowingly cooperate with, any Takeover Proposal or any inquiry that may reasonably be expected to lead to, a proposal or offer to a Takeover Proposal, (iii) enter into any agreement with respect to any Takeover Proposal or approve or resolve to approve any Takeover Proposalmerger, or (iv) waiveconsolidation, terminateamalgamation, modify or fail to enforce any provision refinancing of debt, acquisition of any “standstill” equity interest (other than as contemplated by this Agreement), prepackaged bankruptcy plan, plan of liquidation or dissolution, recapitalization, sale and/or purchase of all or substantially all of the assets of AGC, GEI or any of the Transferred Entities or any similar obligation business combination, acquire any interest in, dispose of or otherwise result in a change of control of any Third Party existing on of the date hereofPrice Entities or any of their respective material assets (any of the foregoing inquiries or proposals, an "ACQUISITION PROPOSAL"; provided, however, that nothing contained in this Section 5.3 or any other provision of this Agreement shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company Shareholders a position with respect to a tender or exchange offer by a Third Party transactions contemplated by Rule 14e-2(a) or making a statement required under Rule 14d-9 under the Exchange Act or (B) making any disclosure to the Company Shareholders if the Company Board has determined, in good faith, after consultation with outside counsel, that the failure to make any such disclosure is inconsistent with its fiduciary duties under applicable Law, provided, that (1) compliance with such rules shall in no way limit Parent’s right to terminate this Suspended Merger Agreement pursuant to Section 8.1(b)(ii) hereof and payment of the Termination Fee pursuant to Section 8.3(c) or Section 8.3(d) and (2) in no event shall the Company or the Company Board (or any committee thereof), except as permitted by Section 5.3(e), take, or agree or resolve to take, any of the following actions: withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation or make or cause to be made through the Company’s or the Company Subsidiaries’ Representatives any public statement proposing or announcing an intention to withdraw or modify in any manner adverse to Parent or Merger Sub the Company Board Recommendation (any such action, a “Change in Recommendation”) (it being understood that any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act shall not be deemed a Change in Recommendationan Acquisition Proposal hereunder). The Company shall, and shall cause its Subsidiaries and the Company Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished.
(b) Notwithstanding anything to the contrary in this Section 5.3, at any time from the date of this Agreement and prior to obtaining the Company Shareholder Approval, if the Company has received from any Third Party a bona fide written Takeover Proposal made after the date of this Agreement that was not solicited in violation of and did not otherwise result from a breach of this Section 5.3, (i) the Company may contact such Third Party or its advisors for the purpose of clarifying such Takeover Proposal and the material terms and conditions thereof to the extent required to determine whether such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, ; (ii) the Company may negotiate the terms ofengage in negotiations or discussions concerning, and enter intoor provide any information to any person or entity relating to, a confidentiality agreement with terms and conditions no less restrictive on such Third Party as the Confidentiality Agreement is on Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), and Acquisition Proposal; or (iii) agree to any Acquisition Proposal. Each member of the Company may furnish information concerning its business, properties or assets to such Third Party pursuant to an Acceptable Confidentiality Agreement, provided, that all such information (to Price Group shall notify the extent not previously provided to Parent) is provided or made available to Parent prior to or substantially concurrent with the time it is provided to such Third Party, and may negotiate and participate in discussions and negotiations with such Third Party concerning such Takeover Proposal, if such Third Party has submitted a Superior Proposal, or a Takeover Proposal that the Company Board determines in good faith (after consultation with its financial advisor and outside counsel) is reasonably likely to constitute or lead to a Superior Proposal, if in connection with the foregoing clauses (i), (ii) and (iii), (A) the Company Board determines in good faith (after consultation with its outside legal advisors) that the failure to take such action would be inconsistent with its fiduciary duties to the Company Shareholders, and (B) prior to taking such action, the Company shall provide written notice thereof to Parent.
(c) The Company will Acquiror promptly (and but in any event within 24 hours hours) after receipt) advise Parent receipt of any Acquisition Proposal, any amendment or modification to an Acquisition Proposal, or any request for nonpublic information relating to the Price Group in connection with an Acquisition Proposal. Such notice to the Acquiror shall be made in writing of the receipt by the Company of any Takeover Proposal after the date of this Agreement, the material terms and conditions of any such Takeover Proposal (including any material changes thereto) and shall indicate the identity of the Person person making any such Takeover Proposal. The Company will keep Parent reasonably informed in all material respects of the status Acquisition Proposal or requesting nonpublic information and details (including any material change to the terms thereof) of any such Takeover Acquisition Proposal or modification or amendment to an Acquisition Proposal.
(d) As used . It is understood that any breach of the restrictions set forth in this Agreement, Section 8.4 by the following terms have the meanings set forth below:-42-
Appears in 1 contract
Third Party Proposals. (a) Except No member of the Price Group shall, nor shall they, as expressly permitted by this Section 5.3applicable, from the date permit any of this Agreement until the Effective Time ortheir respective Subsidiaries, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall not, and shall cause the Company Subsidiaries and its and their officers, directors and employees to notdirectors, and shall otherwise use reasonable best efforts to ensure that the Company’s and the Company Subsidiaries’ accountantsemployees, legal counselrepresentatives or agents, financial advisors and other similar representatives shall notincluding any investment banker, attorney, consultant or accountant engaged by any of them to, directly or indirectly through another Person, (i) solicit solicit, initiate or initiateencourage any inquiry or proposal that constitutes, or knowingly encourage any Takeover Proposal or any inquiries regarding the submission of any Takeover Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Third Party any confidential information with respect to or in connection with, or knowingly facilitate or otherwise knowingly cooperate with, any Takeover Proposal or any inquiry that may reasonably be expected to lead to, a proposal or offer to a Takeover Proposal, (iii) enter into any agreement with respect to any Takeover Proposal or approve or resolve to approve any Takeover Proposalmerger, or consolidation, amalgamation, refinancing of debt (iv) waiveother than as contemplated by this Agreement), terminate, modify or fail to enforce any provision acquisition of any “standstill” equity interest, prepackaged bankruptcy plan, plan of liquidation or similar obligation dissolution, recapitalization, sale and/or purchase of any Third Party existing on the date hereof; provided, however, that nothing contained in this Section 5.3 all or any other provision of this Agreement shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company Shareholders a position with respect to a tender or exchange offer by a Third Party contemplated by Rule 14e-2(a) or making a statement required under Rule 14d-9 under the Exchange Act or (B) making any disclosure to the Company Shareholders if the Company Board has determined, in good faith, after consultation with outside counsel, that the failure to make any such disclosure is inconsistent with its fiduciary duties under applicable Law, provided, that (1) compliance with such rules shall in no way limit Parent’s right to terminate this Agreement pursuant to Section 8.1(b)(ii) hereof and payment substantially all of the Termination Fee pursuant to Section 8.3(c) assets of AGC, GEI or Section 8.3(d) and (2) in no event shall the Company or the Company Board (or any committee thereof), except as permitted by Section 5.3(e), take, or agree or resolve to take, any of the following actions: withdraw Transferred Entities or modifyany similar business combination, acquire any interest in, dispose of or otherwise result in a manner adverse to Parent change of control of any of the Price Entities or Merger Sub, the Company Board Recommendation or make or cause to be made through the Company’s or the Company Subsidiaries’ Representatives any public statement proposing or announcing an intention to withdraw or modify in any manner adverse to Parent or Merger Sub the Company Board Recommendation of their respective material assets (any such actionof the foregoing inquiries or proposals, a “Change in Recommendation”) (an "ACQUISITION PROPOSAL"; it being agreed and understood that any “stop, look and listen” or similar communication of the type transactions contemplated by Rule 14d-9(f) of the Exchange Act Purchase Agreement shall not be deemed a Change an "Acquisition Proposal"); (ii) engage in Recommendation)negotiations or discussions concerning, or provide any information to any person or entity relating to, an Acquisition Proposal; or (iii) agree to any Acquisition Proposal. The Company shallEach member of the Price Group shall notify NGP promptly (but in any event within 24 hours) after receipt of any Acquisition Proposal, any amendment or modification to an Acquisition Proposal, or any request for nonpublic information relating to the Price Group in connection with an Acquisition Proposal. Such notice to NGP shall be made in writing and shall cause its Subsidiaries indicate the identity of the person making the Acquisition Proposal or requesting nonpublic information and the Company Representatives to, immediately cease and cause terms of any such Acquisition Proposal or modification or amendment to be terminated all existing discussions or negotiations with an Acquisition Proposal. It is understood that any Third Party conducted prior to breach of the date of this Agreement with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished.
(b) Notwithstanding anything to the contrary restrictions set forth in this Section 5.310.5 by the Prices, at any time from executive officer of any member of any of the date Price Entities or any investment banker, attorney, consultant, accountant or other agent, advisor or representative of this Agreement and prior the Prices or the Price Entities, shall be deemed to obtaining the Company Shareholder Approval, if the Company has received from any Third Party a bona fide written Takeover Proposal made after the date of this Agreement that was not solicited in violation of and did not otherwise result from be a breach of this Section 5.3, (i) the Company may contact such Third Party or its advisors for the purpose of clarifying such Takeover Proposal and the material terms and conditions thereof to the extent required to determine whether such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, (ii) the Company may negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive on such Third Party as the Confidentiality Agreement is on Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), and (iii) the Company may furnish information concerning its business, properties or assets to such Third Party pursuant to an Acceptable Confidentiality Agreement, provided, that all such information (to the extent not previously provided to Parent) is provided or made available to Parent prior to or substantially concurrent with the time it is provided to such Third Party, and may negotiate and participate in discussions and negotiations with such Third Party concerning such Takeover Proposal, if such Third Party has submitted a Superior Proposal, or a Takeover Proposal that the Company Board determines in good faith (after consultation with its financial advisor and outside counsel) is reasonably likely to constitute or lead to a Superior Proposal, if in connection with the foregoing clauses (i), (ii) and (iii), (A) the Company Board determines in good faith (after consultation with its outside legal advisors) that the failure to take such action would be inconsistent with its fiduciary duties to the Company Shareholders, and (B) prior to taking such action, the Company shall provide written notice thereof to Parent.
(c) The Company will promptly (and in any event within 24 hours after receipt) advise Parent in writing of the receipt by the Company of any Takeover Proposal after the date of this Agreement, the material terms and conditions of any such Takeover Proposal (including any material changes thereto) and the identity of the Person making any such Takeover Proposal. The Company will keep Parent reasonably informed in all material respects of the status and details (including any material change to the terms thereof) of any such Takeover Proposal.
(d) As used in this Agreement, the following terms have the meanings set forth below:10.5
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (National Golf Properties Inc)
Third Party Proposals. From the date hereof until the earlier of (a) Except as expressly permitted by this Section 5.3, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with pursuant to Article VIIIVII or (b) the Effective Time, the Company shall not, and shall cause each Subsidiary and the officers, employees, agents, representatives and Affiliates of the Company or its Subsidiaries and its and their officers, directors and employees to not, and shall otherwise use reasonable best efforts to ensure that the Company’s and the Company Subsidiaries’ accountants, legal counsel, financial advisors and other similar representatives shall not, directly or indirectly through another Personnot to, (i) initiate, solicit or initiateencourage, directly or knowingly encourage indirectly, any Takeover Proposal inquiries, discussions, offers or any inquiries regarding the submission of any Takeover Proposalproposals, (ii) participate in continue, propose or enter into any discussions or negotiations regarding, or furnish to any Third Party any confidential information with respect to or in connection with, or knowingly facilitate or otherwise knowingly cooperate with, any Takeover Proposal or any inquiry that may reasonably be expected to lead to a Takeover Proposallooking toward, (iii) consider any proposal for, or (iv) enter into any agreement or understanding (each of (i) – (iv), an “Acquisition Proposal”) with respect to any Takeover Proposal acquisition or approve purchase, whether by merger or resolve to approve any Takeover Proposalotherwise, of a material portion of the consolidated assets (other than sales of inventory in the ordinary course) of, or of a 10% or more of the voting equity interests in, the Company (iv) waive, terminate, modify or fail to enforce any provision of any a “standstill” or similar obligation of any Third Party existing on Acquisition”) other than as contemplated by this Agreement, or enter into any agreement, arrangement or understanding requiring it to abandon or terminate the date hereof; providedtransactions contemplated by this Agreement, howevernor shall such Persons provide any information to any Person (other than Newco and its representatives, that nothing contained in this Section 5.3 accountants, advisors, consultants and counsel) for the purpose of evaluating or determining whether to make or pursue any other provision of this Agreement inquiries or proposals with respect to any such transactions. The Company shall prohibit notify Newco immediately if any Acquisition Proposal is received by the Company or any of its Subsidiaries, or of which the Company Board from (A) taking Company, any Subsidiaries or any of their respective Affiliates becomes aware, and disclosing communicate to Newco the Company Shareholders a position with respect to a tender or exchange offer by a Third Party contemplated by Rule 14e-2(a) or making a statement required under Rule 14d-9 under the Exchange Act or (B) making any disclosure to the Company Shareholders if the Company Board has determined, in good faith, after consultation with outside counsel, that the failure to make terms of any such disclosure is inconsistent with its fiduciary duties under applicable Law, provided, that (1) compliance with such rules shall in no way limit Parent’s right to terminate this Agreement pursuant to Section 8.1(b)(ii) hereof and payment of the Termination Fee pursuant to Section 8.3(c) or Section 8.3(d) and (2) in no event shall the Company or the Company Board (or any committee thereof), except as permitted by Section 5.3(e), take, or agree or resolve to take, any of the following actions: withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation or make or cause to be made through the Company’s or the Company Subsidiaries’ Representatives any public statement proposing or announcing an intention to withdraw or modify in any manner adverse to Parent or Merger Sub the Company Board Recommendation (any such action, a “Change in Recommendation”) (it being understood that any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act shall not be deemed a Change in Recommendation)Acquisition Proposal. The Company and its Subsidiaries shall, and the Company shall cause its Subsidiaries their respective officers, employees, agents, representatives and the Company Representatives Affiliates to, immediately cease and cause to be terminated all any existing activities, including discussions or negotiations with any Third Party parties, conducted prior to the date of this Agreement hereof with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished.
(b) Notwithstanding anything to the contrary in this Section 5.3, at any time from the date of this Agreement and prior to obtaining the Company Shareholder Approval, if the Company has received from any Third Party a bona fide written Takeover Proposal made after the date of this Agreement that was not solicited in violation of and did not otherwise result from a breach of this Section 5.3, (i) the Company may contact such Third Party or its advisors for the purpose of clarifying such Takeover Proposal and the material terms and conditions thereof to the extent required to determine whether such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, (ii) the Company may negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive on such Third Party as the Confidentiality Agreement is on Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), and (iii) the Company may furnish information concerning its business, properties or assets to such Third Party pursuant to an Acceptable Confidentiality Agreement, provided, that all such information (to the extent not previously provided to Parent) is provided or made available to Parent prior to or substantially concurrent with the time it is provided to such Third Party, and may negotiate and participate in discussions and negotiations with such Third Party concerning such Takeover Proposal, if such Third Party has submitted a Superior Proposal, or a Takeover Proposal that the Company Board determines in good faith (after consultation with its financial advisor and outside counsel) is reasonably likely to constitute or lead to a Superior Proposal, if in connection with the foregoing clauses (i), (ii) and (iii), (A) the Company Board determines in good faith (after consultation with its outside legal advisors) that the failure to take such action would be inconsistent with its fiduciary duties to the Company Shareholders, and (B) prior to taking such action, the Company shall provide written notice thereof to Parent.
(c) The Company will promptly (and in any event within 24 hours after receipt) advise Parent in writing of the receipt by the Company of any Takeover Proposal after the date of this Agreement, the material terms and conditions of any such Takeover Proposal (including any material changes thereto) and the identity of the Person making any such Takeover Acquisition Proposal. The Company will keep Parent reasonably informed in all material respects represents on its behalf and on behalf of the status and details (including its Affiliates, that it is not party to or bound by any material change agreement with respect to the terms thereof) of any such Takeover Proposal.
(d) As used in an Acquisition Proposal other than under this Agreement, the following terms have the meanings set forth below:.
Appears in 1 contract
Samples: Merger Agreement (Sealy Corp)
Third Party Proposals. From the date hereof until the earlier of (a) Except as expressly permitted by this Section 5.3, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIIIor (b) the Effective Time, the Company shall not, and shall cause each Subsidiary and the officers, employees, agents, representatives and Affiliates of the Company or its Subsidiaries and its and their officers, directors and employees to not, and shall otherwise use reasonable best efforts to ensure that the Company’s and the Company Subsidiaries’ accountants, legal counsel, financial advisors and other similar representatives shall not, directly or indirectly through another Personnot to, (i) initiate, solicit or initiateencourage, directly or knowingly encourage indirectly, any Takeover Proposal inquiries, discussions, offers or any inquiries regarding the submission of any Takeover Proposalproposals, (ii) participate in continue, propose or enter into any discussions or negotiations regarding, or furnish to any Third Party any confidential information with respect to or in connection with, or knowingly facilitate or otherwise knowingly cooperate with, any Takeover Proposal or any inquiry that may reasonably be expected to lead to a Takeover Proposallooking toward, (iii) consider any proposal for, or (iv) enter into any agreement or understanding (each of (i)—(iv), an “Acquisition Proposal”) with respect to any Takeover Proposal acquisition or approve purchase, whether by merger or resolve to approve any Takeover Proposalotherwise, of a material portion of the consolidated assets (other than sales of inventory in the ordinary course) of, or of 10% or more of the voting equity interests in, the Company (iv) waive, terminate, modify or fail to enforce any provision of any a “standstill” or similar obligation of any Third Party existing on Acquisition”) other than as contemplated by this Agreement, or enter into any agreement, arrangement or understanding requiring it to abandon or terminate the date hereof; providedtransactions contemplated by this Agreement, however, that nothing contained in this Section 5.3 nor shall such Persons provide any information to any Person (other than Xxxxxx Merger Corp. and its Representatives) for the purpose of evaluating or determining whether to make or pursue any other provision of this Agreement inquiries or proposals with respect to any such transactions. The Company shall prohibit notify Purchasers immediately if any Acquisition Proposal is received by the Company or any Subsidiary, or of which the Company Board from (A) taking Company, any Subsidiaries or any of their respective Affiliates becomes aware, and disclosing communicate to Purchasers the Company Shareholders a position with respect to a tender or exchange offer by a Third Party contemplated by Rule 14e-2(a) or making a statement required under Rule 14d-9 under the Exchange Act or (B) making any disclosure to the Company Shareholders if the Company Board has determined, in good faith, after consultation with outside counsel, that the failure to make terms of any such disclosure is inconsistent with its fiduciary duties under applicable Law, provided, that (1) compliance with such rules shall in no way limit Parent’s right to terminate this Agreement pursuant to Section 8.1(b)(ii) hereof and payment of the Termination Fee pursuant to Section 8.3(c) or Section 8.3(d) and (2) in no event shall the Company or the Company Board (or any committee thereof), except as permitted by Section 5.3(e), take, or agree or resolve to take, any of the following actions: withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation or make or cause to be made through the Company’s or the Company Subsidiaries’ Representatives any public statement proposing or announcing an intention to withdraw or modify in any manner adverse to Parent or Merger Sub the Company Board Recommendation (any such action, a “Change in Recommendation”) (it being understood that any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act shall not be deemed a Change in Recommendation)Acquisition Proposal. The Company and its Subsidiaries shall, and the Company shall cause its Subsidiaries their respective Representatives and the Company Representatives Affiliates to, immediately cease and cause to be terminated all any existing activities, including discussions or negotiations with any Third Party parties, conducted prior to the date of this Agreement hereof with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished.
(b) Notwithstanding anything to the contrary in this Section 5.3, at any time from the date of this Agreement and prior to obtaining the Company Shareholder Approval, if the Company has received from any Third Party a bona fide written Takeover Proposal made after the date of this Agreement that was not solicited in violation of and did not otherwise result from a breach of this Section 5.3, (i) the Company may contact such Third Party or its advisors for the purpose of clarifying such Takeover Proposal and the material terms and conditions thereof to the extent required to determine whether such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, (ii) the Company may negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive on such Third Party as the Confidentiality Agreement is on Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), and (iii) the Company may furnish information concerning its business, properties or assets to such Third Party pursuant to an Acceptable Confidentiality Agreement, provided, that all such information (to the extent not previously provided to Parent) is provided or made available to Parent prior to or substantially concurrent with the time it is provided to such Third Party, and may negotiate and participate in discussions and negotiations with such Third Party concerning such Takeover Proposal, if such Third Party has submitted a Superior Proposal, or a Takeover Proposal that the Company Board determines in good faith (after consultation with its financial advisor and outside counsel) is reasonably likely to constitute or lead to a Superior Proposal, if in connection with the foregoing clauses (i), (ii) and (iii), (A) the Company Board determines in good faith (after consultation with its outside legal advisors) that the failure to take such action would be inconsistent with its fiduciary duties to the Company Shareholders, and (B) prior to taking such action, the Company shall provide written notice thereof to Parent.
(c) The Company will promptly (and in any event within 24 hours after receipt) advise Parent in writing of the receipt by the Company of any Takeover Proposal after the date of this Agreement, the material terms and conditions of any such Takeover Proposal (including any material changes thereto) and the identity of the Person making any such Takeover Acquisition Proposal. The Company will keep Parent reasonably informed in all material respects represents on its behalf and on behalf of the status and details (including its Affiliates, that it is not party to or bound by any material change agreement with respect to the terms thereof) of any such Takeover Proposal.
(d) As used in an Acquisition Proposal other than under this Agreement, the following terms have the meanings set forth below:.
Appears in 1 contract
Samples: Recapitalization Agreement and Plan of Merger (Leiner Health Services Corp.)
