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main | contract_144 | SECTION 5.02. No Solicitation. (a) The Company shall not, and shall cause its subsidiaries not to, and shall cause any officer, director or employee of, or any investment banker, attorney, accountant or other advisor or representative (collectively, “Representatives”) of, the Company or any of its subsidiaries not to, directly or indirectly (i) solicit, initiate or encourage the submission of, any Acquisition Proposal, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, (ii) enter into any Acquisition Agreement with respect to any Acquisition Proposal, (iii) enter into, participate in or continue any discussions or negotiations regarding, or furnish to any Person any information with respect to, or otherwise cooperate in any way with or facilitate or enable, any Acquisition Proposal, (iv) waive, terminate, modify, fail to enforce or release any Person (other than Parent, Sub or their respective affiliates) under any “standstill” or similar agreement or obligation other than in accordance with the terms thereof, or exempt any Person (other than Parent, Sub and their respective affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or similar provisions of any other Takeover Laws) or (v) propose, resolve or agree to do any of the foregoing. The Company shall, and shall cause its Representatives to, (1) cease immediately all discussions and negotiations regarding any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (2) immediately after the date hereof shall request the prompt return or destruction of all confidential information previously furnished to such Person(s) within the last twelve months for the purpose of evaluating a possible Acquisition Proposal and (3) terminate access to any physical or electronic data rooms relating to a possible Acquisition Proposal. Notwithstanding the foregoing, at any time prior to receipt of the Company Stockholder Approval, if the Company Board receives a written bona fide Acquisition Proposal after the date hereof that was not solicited by the Company or its Representatives and did not otherwise result from a breach or deemed breach of this Section 5.02(a) and that (I) the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or would reasonably be expected to lead to a Superior Proposal, and (II) the Company Board determines in good faith, after consultation with outside legal counsel, that failure to take the actions specified in the following clauses (x) and/or (y) of this sentence with respect to such Acquisition Proposal would be inconsistent with its fiduciary duties to the stockholders of the Company under Delaware Law, then subject to providing prior written notice (before taking the actions in the following clauses (x) or (y) hereof) of its decision to take such action to Parent as promptly as practicable after such determination was reached (and in any event, no later than 24 hours thereafter) and compliance with Section 5.02(c), the Company Board may (x) furnish information with respect to the Company to the Person making such Acquisition Proposal and its Representatives pursuant to a confidentiality agreement not materially less restrictive in the aggregate of the other party than the Confidentiality Agreement provided that, a Person who within the last twelve months that has entered into a confidentiality agreement with the Company relating to a purchase of, or business combination with, the Company shall not be required to enter into a new or revised confidentiality agreement if such confidentiality agreement remains in effect with a term of at least twelve (12) months and does not prohibit the Company from complying with this Section 5.02, and such existing confidentiality agreement shall be deemed to be an acceptable confidentiality agreement hereunder (provided, that any information provided to such Person shall have previously been made available to Parent or shall be made available to Parent prior to or at the same time as it is provided to such Person, and provided further that such confidentiality agreement shall not prohibit or purport to prohibit the Company in any way from complying with this Section 5.02 or this Agreement or include any provision calling for an exclusive right to negotiate with the Company, the Company Board or their Representatives) and (y) participate in discussions or negotiations with such Person and its Representatives regarding any Acquisition Proposal. Without limiting the foregoing, it is agreed that any breach of the restrictions set forth in the preceding sentence by any Representative or affiliate of the Company or any of its subsidiaries, whether or not such Person 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 Section 5.02(a) by the Company. (Page 52) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_63 | Section 6.02. Acquisition Proposals; Change of Recommendation. (a) No Solicitation. At all times from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VIII, except as expressly permitted by this Section 6.02, neither the Company nor any of its Subsidiaries nor any of its or their directors or executive officers shall, and the Company shall direct its and its Subsidiaries’ other Representatives acting on its or its Subsidiary’s behalf not to and shall not authorize any such Representatives to: (i) initiate, solicit, propose an Acquisition Proposal or knowingly encourage or otherwise knowingly facilitate any action that constitutes or could lead to an Acquisition Proposal; (ii) engage in, continue or otherwise participate in any discussions or negotiations relating to any Acquisition Proposal; (iii) provide any non-public information or data concerning the Company or its Subsidiaries or access to the Company or its Subsidiaries’ properties, books and records to any Person or Group in connection with any Acquisition Proposal or any action that would reasonably be expected to lead to an Acquisition Proposal;
(iv) take any action to exempt any third party from the restrictions on “business combinations” set forth in Section 203 of the DGCL (as such term is defined in Section 203 of the DGCL) or any other applicable Takeover Statute or otherwise cause such restrictions not to apply; or (v) agree, authorize or commit to do any of the foregoing. (Pages 31-32) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_50 | 7.5 Acquisition Proposals. (a) No Solicitation or Negotiation. The Paired Entities agree that, except as expressly permitted by this Section 7.5(a), the Paired Entities and the Paired Entities Subsidiaries shall not, and the Paired Entities shall cause their officers and directors not to, and shall instruct and use their commercially reasonable efforts to cause their and the Paired Entities Subsidiaries’ other Representatives not to, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, directly or indirectly through any other person: 53
( i ) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries, discussions or requests regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal (an “Inquiry”); (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or that could reasonably be expected to lead to, an Acquisition Proposal, or provide any non-public information or data concerning the Paired Entities or the Paired Entities Subsidiaries to any person in connection with the foregoing, in each case, except to notify such person of the existence of the provisions of this Section 7.5; (iii) otherwise knowingly facilitate in any way any effort or attempt to make an Acquisition Proposal or Inquiry; (iv) approve or recommend any Acquisition Proposal; ( v ) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement providing for or relating to an Acquisition Proposal or requiring a Paired Entity to abandon, terminate or fail to consummate the transactions contemplated by this Agreement (any of the foregoing referred in this clause (v), an “Alternative Acquisition Agreement”); or (vi) resolve or agree to do any of the foregoing. (Pages 57-58) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_139 | Section 6.3. Solicitation.
(a) From and after the date hereof until the earlier of the Effective Time or the date, if any, on which this Agreement is validly terminated pursuant to Section 9.1, the Company agrees that it, the Company Board of Directors (including any committee thereof) and the Company’s officers shall not, and the Company shall cause the Company’s Subsidiaries not to, and the Company shall cause its and their other respective Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer which constitutes or could be reasonably expected to lead to an Acquisition Proposal or (ii) participate in any discussions or negotiations regarding or furnish to any Person any information relating to the Company or any Company Subsidiary in each case, in connection with, an Acquisition Proposal, other than to state that the Company and their Representatives are prohibited hereunder from engaging in any discussions or negotiations. The Company, the Company Board of Directors (including any committee thereof) and the Company’s officers shall, and the Company shall cause the Company’s Subsidiaries to, and the Company shall cause its and their other respective Representatives to, immediately cease any and all existing solicitation, encouragement, discussions or negotiations with any Persons (or provision of any nonpublic information to any Persons) with respect to any inquiry, proposal or offer that constitutes, or is reasonably expected to lead to, an Acquisition Proposal. Promptly after the date hereof (and, in any event, within three (3) business days following the date hereof) the Company shall (A) request in writing that each Person (other than Parent) that has heretofore executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal within eighteen (18) months prior to the date hereof promptly destroy or return to the Company all nonpublic information heretofore furnished by the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of such confidentiality agreement, unless such request had been made by or on behalf of the Company prior to the execution and delivery of this Agreement and no -50-
information was provided by or on behalf of the Company to such Person or its Representatives following such request, and (B) terminate access to any physical or electronic data rooms relating to a possible Acquisition Proposal by any such Person and its Representatives. <omitted>
For the avoidance of doubt, any violation of the restrictions set forth in this Section 6.3 by the Company Board of Directors (including any committee thereof), by any of the Company’s officers, by any of the Company’s other affiliates or by any of their respective Representatives shall be a breach of this Section 6.3 by the Company. (Pages 54-55) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_38 | 4.3. No Solicitation. <omitted> (b) Except as expressly permitted by this Section 4.3, during the Pre-Closing Period the Acquired Corporations shall not, and shall direct their Representatives not to, directly or indirectly, (i) engage or continue any solicitation, knowing encouragement, knowing facilitation (including by way of providing non-public information), discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, (ii) (A) solicit, initiate or knowingly facilitate, induce, assist or encourage (including by way of furnishing non-public information) any Acquisition Proposal or any inquiries, proposals or offers that constitute, or could reasonably be expected to lead to, an Acquisition Proposal (each such, an “Inquiry”) or the 37
making, submission or announcement of any Acquisition Proposal or Inquiry, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information relating to any Acquired Corporation or afford to any other Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of any Acquired Corporation, in each case in connection with or for the purpose of knowingly encouraging, assisting, inducing or facilitating, an Acquisition Proposal or any Inquiry or (C) enter into, approve or endorse Alternative Acquisition Agreement, or enter into any related discussions with respect thereto, that could reasonably be expected to lead to an Acquisition Proposal, (iii) enter into any Contract that would expressly prohibit any Acquired Corporation or any of their Representatives from complying with their obligations to Parent under this Section 4.3 (other than an unintentional and immaterial breach), (iv) take any action to exempt any Person (other than Parent and Merger Sub) from any Takeover Law, or (v) agree, propose or resolve to take, or take any actions prohibited by any of clauses (i) through (iv). <omitted>
Representatives. “Representatives” shall mean officers, directors, employees, attorneys, accountants, investment bankers, consultants, agents, financial advisors, other advisors and other representatives.
<omitted>
(f) The Company agrees that in the event any Representative of any Acquired Corporation takes any action (or omits to take any action) which, if taken or not taken by the Acquired Corporation, would constitute a breach of this Section 4.3, the Company shall be deemed to be in breach of this Section 4.3. (Pages 41-42) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_36 | Section 6.5 Non-Solicitation; Competing Proposals. (a) Except as expressly permitted by this Agreement, from the execution of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VIII, the Company shall, and shall cause its Subsidiaries and each of its and their respective directors and officers to, and shall instruct and use its reasonable best efforts to cause its other Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Third Party relating to any Competing Proposal or any inquiry, discussion or request that would reasonably be expected to lead to a Competing Proposal, and the Company shall promptly (and in any event within two (2) Business Days of the date hereof) request in writing that each Third Party that has previously executed a confidentiality or similar agreement promptly return to the Company or destroy all non-public information previously furnished or made available to such Third Party or any of its Representatives by or on behalf of the Company or its Representatives in accordance with the terms of such confidentiality agreement. Except as otherwise provided in this Section 6.5, from the execution of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VIII, the Company shall not, and shall cause its Subsidiaries and each of its and their respective directors and officers not to, and shall instruct and use its reasonable best efforts to cause its other Representatives not to, (i) initiate, solicit, propose, knowingly facilitate or knowingly encourage the making of any Competing Proposal or any inquiry or proposal that constitutes or would reasonably be expected to lead to a Competing Proposal, (ii) participate or engage in negotiations or discussions (other than informing Persons of the provisions contained in this Section 6.5 in response to a bona fide, unsolicited inquiry) with, or furnish any nonpublic information to, any Person relating to a Competing Proposal or any inquiry, proposal or request that constitutes or would reasonably be expected to lead to a Competing Proposal, (iii) grant access to the properties, books, records or personnel of the Company or its Subsidiaries to any Person relating to any Competing Proposal or any inquiry or proposal that constitutes or would reasonably be expected to lead to a Competing Proposal, (iv) grant any waiver, amendment or release (to the extent not automatically waived, amended or released upon announcement of, or entering into, this Agreement) of any Third Party under any standstill or confidentiality agreement; provided that, notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate (to the extent not automatically waived or terminated upon the announcement of, or entry into, this Agreement) any “standstill” or similar obligation of any Third Party with respect to the Company or any of its Subsidiaries to allow such Third Party to make a Competing Proposal if failure to so waive or terminate would be inconsistent with the Company’s directors’ fiduciary duties to the stockholders of the Company under applicable Law or (v) approve, endorse, recommend, or execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement or Contract relating to a Competing Proposal or any proposal or offer that constitutes or would reasonably be expected to lead to a Competing Proposal (other than an Acceptable Confidentiality Agreement in accordance with the provisions of Section 6.5(c)) (any such letter of intent, memorandum of understanding, agreement or Contract, an “Alternative Acquisition Agreement”). (Page 50) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_119 | Section 6.03. No Solicitation; Other Offers.(a) Subject to the remainder of this Section 6.03, neither the Company nor any of its Subsidiaries shall, and the Company and its Subsidiaries shall cause their respective officers, directors and employees and instruct their investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage the submission of any Acquisition Proposal or offer or inquiry that would reasonably be expected to lead to any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way, or assist, participate in, knowingly facilitate or otherwise knowingly encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) fail to make (including by failing to include in the Proxy Statement), withdraw or modify in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (v) approve any transaction under, or any Person becoming an “interested shareholder” under the business combination provisions of South Dakota Law (Section 47-33-17 to Section 47-33-19, inclusive), (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal, or (vii) publicly propose to do any of the foregoing. (Page 47) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_120 | 5.4 No Solicitation. <omitted> (b) No Solicitation or Negotiation. Subject to the terms of this Section 5.4, from the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will, and will cause its Subsidiaries and its and their respective officers and directors, and will instruct and use reasonable best efforts to cause each of its other Representatives to cease and cause to be terminated any discussions or negotiations with any Third Person and its Representatives that would be prohibited by this Section 5.4(b), request the prompt return or destruction of all non-public information concerning the Company Group theretofore furnished to any such Person with whom a confidentiality agreement with respect to an Acquisition Proposal was entered into at any time within the three (3) month period immediately preceding the No-Shop Period Start Date and will (A) cease providing any further information with respect to the Company or any Acquisition Proposal to any such Third Person or its Representatives; and (B) terminate all access granted to any such Third Person and its Representatives to any physical or electronic data room (or any other diligence access). Subject to the terms of Section 5.4(c), from the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company and its Subsidiaries will not instruct, authorize or knowingly permit any of their officers and directors or any of their other Representatives to, directly or indirectly, (i) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any Inquiry or proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (ii) furnish to any Third Person any non-public information relating to the Company Group or afford to any Third Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company Group, in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist an Acquisition Proposal or any Inquiries or the making of any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in discussions, communications or negotiations with any Third Person with respect to an Acquisition Proposal or Inquiry (other than informing such Third Persons of the provisions contained in this Section 5.4); (iv) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal; or (v) enter into any letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction (other than an Acceptable Confidentiality Agreement), an “Alternative Acquisition Agreement”). Notwithstanding the commencement of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 5.4(a) with respect to any Excluded Party (but only for so long as such Person is and remains an Excluded Party), including with respect to any amended or modified Acquisition Proposal submitted by any Excluded Party following the No-Shop Period Start Date, and the restrictions in this Section 5.4(b) shall not apply with respect thereto. From the No-Shop Period Start Date until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will be required to enforce, and will not be permitted to waive, terminate or modify, any provision of any standstill or confidentiality agreement that prohibits or purports to prohibit a proposal being made to the Company Board (or any committee thereof) (unless the Company Board has determined in good faith, after consultation with its outside counsel, that failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law). (Page 67) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_11 | 6.9 No Solicitation; Change in Company Board Recommendation.
(a) The Company agrees that none of it or any of its Subsidiaries or any of their respective officers, directors and employees will, and will cause its and its Subsidiaries’ officers, directors, agents, representatives, advisors and Affiliates not to, initiate, solicit, encourage or knowingly facilitate any inquiries or the making of proposals with respect to, or engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any Person relating to, any Company Acquisition Proposal or otherwise facilitate any effort to attempt or make or implement a Company Acquisition Proposal. (Page 65) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_44 | 7.5. Acquisition Proposals. 7.5.1. (a) Each party agrees that it will not, and will cause each of its Subsidiaries and its and their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal (as defined below), (ii) engage or participate in any negotiations with any Person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any Person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 7.5) in connection with or relating to any Acquisition Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Bridge Bancorp Vote, in the case or Bridge Bancorp, or the Requisite DCB Vote, in the case of DCB, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the Person making the Acquisition Proposal if the Board of Directors of such party concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, that, prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the Person making such Acquisition Proposal on terms no less favorable to such party than the Confidentiality Agreement, which confidentiality agreement shall not provide such Person with any exclusive right to negotiate with such party. (Page 68) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_70 | (b) No-Shop. Except as expressly permitted by this Section 6.03, from the No-Shop Period Start Date (or, with respect to an Excluded Party, from 11:59 p.m. New York City time on the fifteenth (15th) day following the No-Shop Period Start Date) (such time on the fifteenth (15th) day, the “Cut-Off Time”) until the earlier to occur of the valid termination of this Agreement pursuant to ARTICLE VIII and the Offer Closing, the Company shall not, and shall cause each of its Subsidiaries and its and their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or Representatives not to, directly or indirectly, (i) solicit, initiate, or knowingly encourage or knowingly facilitate any proposal or offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, or (ii) subject to Section 6.03(c), engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any information in connection with or for the purpose of knowingly encouraging or knowingly facilitating, any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal (it being understood that notifying such Person of the existence of this Section 6.03 shall not be a breach of this Section 6.03). The Company shall, and the Company shall cause its Subsidiaries, and its and their respective directors, officers, employees, investment bankers, attorneys, accountants and 49
other advisors or Representatives to, immediately after the No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Time), cease any and all solicitation, discussions or negotiations with any Persons (or provision of any nonpublic information to any Persons), other than as permitted by Section 6.03(c), with respect to any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal. Not later than the No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Time), the Company shall (A) request in writing that each Person that has heretofore executed a confidentiality agreement in connection with its consideration of a Takeover Proposal or potential Takeover Proposal promptly destroy or return to the Company all nonpublic information theretofore furnished by the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of such confidentiality agreement and (B) terminate access to any physical or electronic data rooms relating to a possible Takeover Proposal by such Person and its Representatives. Without limiting the foregoing, it is understood that any violation of or the taking of any actions inconsistent with the restrictions set forth in this Section 6.03 by (y) any directors, officers or employees of the Company or its Subsidiaries, whether or not purporting to act on behalf of the Company or any of its Subsidiaries, or (z) investment bankers, attorneys, accountants, consultants, or other agents or advisors if acting at the direction of the Company shall be deemed to be a breach of this Section 6.03 by the Company. (Pages 54-55) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_62 | 5.4 No Solicitation by the Company; Other Offers. (a) From and after the Agreement Date, until the earlier of the Effective Time and the date on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause the Company Subsidiaries to, and it shall instruct its and their respective Representatives not to, directly or indirectly including through another Person, except as otherwise provided below in this Section 5.4: (i) solicit, initiate or knowingly encourage any proposal or inquiry that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (ii) other than informing Persons of the provisions contained in this Section 5.4, enter into, continue or participate in any discussions or any negotiations regarding any Acquisition Proposal or any proposal or inquiry that would reasonably be expected to lead to an Acquisition Proposal; (iii) approve, endorse or recommend an Acquisition Proposal or any letter of intent (whether binding or non-binding), memorandum of understanding or other Contract contemplating an Acquisition Proposal or that would reasonably be expected to lead the Company to abandon or terminate its obligations under this Agreement; or (iv) resolve, propose or agree to do any of the 38 foregoing. From and after the Agreement Date, the Company shall, and shall cause the Company Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all discussions or negotiations with any Person previously conducted with respect to any Acquisition Proposal. The Company shall be responsible for any action taken by its Representatives acting in their authorized capacities on behalf of the Company that would violate this Section 5.4 if taken by the Company. (Pages 43-44) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_74 | Section 5.2 No Solicitation.
(a) No Solicitation or Negotiation. Except as expressly permitted by this Section 5.2 (including Section 5.2(b)), the Company and its Subsidiaries shall, and the Company and its Subsidiaries shall cause their respective directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) to, (i) immediately cease and terminate any solicitation, encouragement (including by way of providing access to non-public information or the business, properties, assets or personnel of the Company or any of its Subsidiaries to any Person or its Representatives, Affiliates, or prospective equity and debt financing sources), discussions or negotiations with any Persons that may be ongoing with respect to any inquiry, proposal or Acquisition Proposal, and as promptly as practicable thereafter deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to any inquiry, proposal or Acquisition Proposal, effective immediately, which notice shall also request such Person to return or destroy promptly all confidential 36
information concerning the Company and its Subsidiaries, and (ii) from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with ARTICLE VII, not directly or indirectly (A) initiate, solicit, knowingly facilitate or knowingly encourage (publicly or otherwise) (including by way of providing access to non-public information or the business, properties, assets or personnel of the Company or any of its Subsidiaries to any Person and its Representatives and its Affiliates) any inquiries regarding, or the making, submission or announcement of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (B) engage or enter into, continue or otherwise participate in any discussions or negotiations with respect to, or provide any non-public information or data concerning, the Company or its Subsidiaries to any Person relating to, or that would reasonably be expected to lead to, any Acquisition Proposal or otherwise cooperate with or assist or participate in, or knowingly facilitate such inquiries, proposals, discussions or negotiations, (C) grant to any Person any waiver, amendment or release under any standstill or confidentiality agreement or any Takeover Statute unless, in each case, the Company’s Board of Directors (or a committee thereof) first determines that the failure to take such action would be inconsistent with the Company directors’ fiduciary duties under applicable Law, or (D) otherwise facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt by any Person to make an Acquisition Proposal. A breach by any Subsidiary or Representative of the Company or any of its Subsidiaries of this Section 5.2 shall constitute a breach by the Company of this Section 5.2 (Pages 40-41) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_87 | Section 5.10 Acquisition Proposals. <omitted>
(b) The Company agrees that it will not, and will cause its Subsidiaries and its Subsidiaries’ officers, directors, agents, advisors and affiliates not to, initiate, solicit, encourage or knowingly facilitate inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any Person relating to, any Acquisition Proposal (other than contacting a Person for the sole purpose of seeking clarification of the terms and conditions of such Acquisition Proposal); provided that, in the event the Company receives an unsolicited bona fide Acquisition Proposal, from a Person other than Nicolet, after the execution of this Agreement and prior to the receipt of the Company Shareholder Approval, and the Company Board concludes in good faith, after consultation with its financial advisor and outside counsel, that such Acquisition Proposal constitutes a Superior Proposal or could reasonably be likely to result in a Superior Proposal and, after considering the advice of outside counsel, that failure to take such actions could be reasonably likely to result in a violation of the directors’ fiduciary duties under applicable law, the Company may: (i) furnish information with respect to it to such Person making such Acquisition Proposal pursuant to a customary confidentiality agreement (subject to the requirement that any such information not previously provided to Nicolet shall be promptly furnished to Nicolet); (ii) participate in discussions or negotiations regarding such Acquisition Proposal; and (iii) terminate this Agreement in order to concurrently enter into an agreement with respect to such Acquisition Proposal; provided, however, that the Company may not terminate this Agreement pursuant to this Section 5.10 unless and until (x) five (5) Business Days have elapsed following the delivery to Nicolet of a written notice of such determination by the Company Board and, during such five (5) Business-Day period, the parties cooperate with one another with the intent of enabling the parties to engage in good faith negotiations so that the Contemplated Transactions may be effected, and (y) at the end of such five (5) Business-Day period, the Company Board continues, in good faith and after consultation with outside legal counsel and financial advisors, to believe that a Superior Proposal continues to exist. (Page 41) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_114 | Section 6.2 No-Shop Period. (a) Subject to the provisions of this Section 6.2, commencing on the No-Shop Period Start Date and continuing until the earlier of the Effective Time and the Termination Date, the Company shall not, and shall cause its Subsidiaries and its and their respective directors and officers not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage 36
or knowingly facilitate the making or submission of any offer or proposal that constitutes, or would reasonably be expected to lead to, an Alternative Acquisition Proposal, (ii) participate in any discussions or negotiations regarding an Alternative Acquisition Proposal with, or furnish any nonpublic information relating to the Company or its Subsidiaries for the purpose of facilitating an Alternative Acquisition Proposal to, any Person that has made or, to the Knowledge of the Company, is considering making an Alternative Acquisition Proposal (except, in each case, to notify such Person as to the existence of the provisions of this Section 6.2), or afford any Person access to the businesses, properties, assets, books, records or other non-public information, or to any personnel, of the Company or its Subsidiaries for the purpose of encouraging, inducing or facilitating an Alternative Acquisition Proposal, or (iii) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to an Alternative Acquisition Proposal, or (iv) enter into any letter of intent, agreement in principle, memorandum of understanding, or other acquisition agreement, merger agreement or similar agreement with respect to an Alternative Acquisition Proposal (except for an Acceptable Confidentiality Agreement permitted hereunder). From the date of this Agreement until the earlier of the Effective Time and the Termination Date, the Company will be required to enforce, and will not waive, terminate or modify any provision of any standstill or confidentiality agreement that prohibits or purports to prohibit a proposal being made to the Company Board (or any committee thereof) unless the Company Board has determined in good faith, after consultation with its outside counsel, that the failure to take such action (A) would prohibit the counterparty from making an Alternative Acquisition Proposal to the Company Board and (B) would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law.
(b) Subject to the terms of this Section 6.2, from the No-Shop Period Start Date until the earlier of the Effective Time and the Termination Date, the Company will, and will cause its Subsidiaries and its and their respective officers and directors, and shall use its reasonable best efforts to cause its other Representatives to, (i) cease and cause to be terminated any discussions or negotiations with any Person and its Representatives that is prohibited by this Section 6.2, (ii) request the prompt return or destruction of all non-public information concerning the Company and its Subsidiaries theretofore furnished to any such Person with whom a confidentiality agreement with respect to an actual or potential Alternative Acquisition Proposal was entered into at any time within twelve (12) months immediately preceding the No-Shop Period Start Date, (iii) cease providing any further information with respect to the Company or any Alternative Acquisition Proposal to any such Person or its Representatives and (iv) terminate all access granted to any such Person and its Representatives to any physical or electronic data room (or any other diligence access). Notwithstanding anything in Section 6.2(a) or this Section 6.2(b) to the contrary, at any time prior to the adoption of this Agreement by the Company’s stockholders, the Company may continue to engage in the activities described in Section 6.1 (but subject to compliance with all of the requirements set forth therein) with respect to any Excluded Party (but only for so long as such Person is and remains an Excluded Party (provided that at any time that a Person ceases to be an Excluded Party, such Person may thereafter never become an Excluded Party)), including with respect to any amended or modified Alternative Acquisition Proposal received from any Excluded Party following the No-Shop Period Start Date, and the restrictions in Section 6.2(a) shall not apply with respect thereto for so long as such Person is and remains an Excluded Party. (Pages 40-41) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_93 | Section 5.09 No Solicitation by Company.
(a) Company and its Subsidiaries shall immediately cease, and Company and its Subsidiaries shall cause each of their respective representatives to immediately cease, any discussions or negotiations with any parties conducted prior to the date of this Agreement with respect to a Company Acquisition Proposal. Except as permitted by this Section 5.09, after the execution and delivery of this Agreement, Company shall not, and shall cause its Subsidiaries and its and their directors, officers, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) solicit, initiate or encourage any inquiry with respect to, (ii) participate or engage in any negotiations with any Person with, or furnish any nonpublic information relating to, or (iii) engage or participate in any discussions with any Person regarding, a Company Acquisition Proposal, except to notify such Person of the existence of the provisions of this Section 5.09; provided, that, prior to the receipt of the Requisite Company Stockholder Approval, in the event Company receives an unsolicited bona fide written Company Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its board of directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that such Company Acquisition Proposal is reasonably likely to lead to a Company Superior Proposal and failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties under applicable Law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Company shall have provided such information to Buyer, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Company. Company will
64
promptly (and in any event within one (1) Business Day) advise Buyer following receipt of any Company Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Company Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Company Acquisition Proposal and, if applicable, copies of any documents or correspondence evidencing such Company Acquisition Proposal) and will keep Buyer reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Company Acquisition Proposal. Company shall use its reasonable best efforts, subject to applicable Law and the fiduciary duties of the board of directors of Company, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. (Pages 69-70) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_0 | “Representatives” means, collectively, with respect to any Person, such Person’s officers, directors, Affiliates, employees, agents or advisors, including any investment banker, broker, attorney, accountant, consultant or other authorized representative of such Person. <omitted>
5.3. No Solicitation; Acquisition Proposals.
(a) No Solicitation Generally. Subject to Section 5.3(c), Section 5.3(d) and Section 5.3(f), from and after the Original Agreement Date until the earlier of the Effective Time and termination of this Agreement in accordance with its terms, the Company Board, the Company and the Subsidiaries will not, and will direct their respective Representatives (collectively, the “Company Representatives”) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage, knowingly facilitate or knowingly induce the making, submission or public announcement of any inquiry, indication of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except to provide written notice as to the existence of these provisions and to clarify the terms and conditions of any Acquisition Proposal) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to any inquiry, indication of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any agreement in principle, letter of intent, term sheet or any other agreement, understanding or contract (whether binding or not) contemplating or otherwise relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement), (v) submit any Acquisition Proposal to the vote of any securityholders of the Company or any Subsidiary, (vi) approve any transaction, or any third party becoming an “interested stockholder,” under Section 203 of Delaware Law or (vii) resolve, propose or 55
agree to do any of the foregoing. <omitted> If any Company Representative takes any action that the Company is obligated pursuant to this Section 5.3 not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 5.3. (Pages 61-62) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_89 | SECTION 5.02. Acquisition Proposals. (a) No Solicitation or Negotiation. The Company agrees that, except as permitted by this Section 5.02, neither it nor any of its Subsidiaries nor any of the officers, directors and management-level employees of it or its Subsidiaries shall, and it shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ other employees, investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit or knowingly take any action to facilitate, solicit or encourage any Acquisition Proposal or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish or provide any non-public information to any Person in connection with, any Acquisition Proposal, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or knowingly 30
assist, participate in, facilitate or encourage any effort relating to an Acquisition Proposal by, any Person that is seeking to make, or has made, an Acquisition Proposal, (iii) except as required by applicable Law, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (iv) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to an Acquisition Proposal. (Pages 34-35) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_147 | Section 6.3 No Solicitation of Transactions. (a) From the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement in accordance with Section 8.1, except as otherwise set forth in this Section 6.3, the Company shall not, and shall cause the Company Subsidiaries and Representatives of the Company not to, and shall not authorize or permit the Representatives of the Company to, directly or indirectly: (i) initiate, solicit, cooperate with, assist, participate in or knowingly take any action to encourage, induce or facilitate (including by way of providing non-public information relating to the Company or Company Subsidiaries or affording access to the business or properties of the Company) the making, submission or announcement of any Acquisition Proposal; (ii) enter into, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any Company Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any Company Subsidiaries to, any Person, in each case, in connection with an Acquisition Proposal; (iii) approve, adopt, endorse, declare advisable or recommend to the Company’s stockholders, or publicly propose to approve, adopt, endorse, declare advisable or recommend to the Company’s stockholders, any Acquisition Proposal, or publicly disclose that the Company Board (or any committee of the Company Board) has determined that any Acquisition Proposal constitutes a Superior Proposal; (Page 38) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_137 | “Representative” means, with respect to a Person, one or more of such Person’s trustees, directors, officers, employees, advisors (including
attorneys, accountants, consultants, investment bankers and financial advisors), agents and other representatives when acting in such capacity and not when acting in any other capacity. <omitted>
Section 7.3 No Solicitation; Change in Recommendation. (a) Except as expressly permitted by this Section 7.3, during the Interim Period, RMRM and TRMT shall, and shall cause the RMRM Subsidiaries and the TRMT Subsidiaries, respectively, and their respective Representatives, (i) to immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to a Competing Proposal (or that may be ongoing with respect to any inquiry or proposal that may be reasonably expected to lead to a Competing Proposal), request that any such Person and its Representatives promptly return or destroy all confidential information concerning RMRM and the RMRM Subsidiaries and TRMT and the TRMT Subsidiaries and immediately terminate all physical and electronic data room access granted to any such Person or its Representatives, and (ii) not to, directly or indirectly, (A) solicit, initiate or knowingly facilitate or knowingly encourage any inquiry or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Competing Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person information in connection with or for the purpose of encouraging or facilitating, a Competing Proposal, or (C) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement, agreement in principle or other agreement with respect to a Competing Proposal (other than an Acceptable Confidentiality Agreement) (each, an “Acquisition Agreement”). <omitted>
It is agreed that any violation of the restrictions set forth in this Section 7.3(a) by any Representative of RMRM or TRMT or any of the RMRM Subsidiaries or the TRMT Subsidiaries shall be deemed to be a breach of this Section 7.3(a) by RMRM or TRMT, as applicable. (Page 29) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_73 | 4.3 No Solicitation by the Company. (a) Subject to Section 4.3(b), the Company shall not, and shall ensure that the other Inphi Entities and its and their respective Representatives do not, in each case, directly or indirectly: (i) solicit, initiate, knowingly encourage, knowingly induce or knowingly facilitate the making, submission or announcement of any Company Acquisition Proposal or Company Acquisition Inquiry (including by approving any transaction, or approving any Person (other than Marvell and its Affiliates) becoming an “interested stockholder,” for purposes of Section 203 of the DGCL); (ii) furnish or otherwise provide access to any information regarding any of the Inphi Entities to any Person in connection with or in response to a Company Acquisition Proposal or Company Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Company Acquisition Proposal or Company Acquisition Inquiry (other than, solely in response to an unsolicited inquiry, to refer the inquiring Person to this Section 4.3(a) and to limit its discussion exclusively to such referral); (iv) approve, endorse or recommend any Company Acquisition Proposal; (v) enter into any letter of intent, memorandum of understanding, agreement in principle or similar document or any Contract contemplating or otherwise relating to a Company Acquisition Transaction (other than a confidentiality agreement entered into pursuant to, and in compliance with, clause “(iv)(B)” of Section 4.3(b)); or (vi) resolve or publicly propose to take any of the actions or do any of the other things described in clauses “(i)” through “(v)” of this sentence; provided, however, that (x) nothing in this Section 4.3(a) shall prohibit the Company or its Representatives from contacting in writing, on a single occasion, any Person who, following the date of this Agreement and prior to the adoption of this Agreement by the Required Company Stockholder Vote, made an unsolicited Company Acquisition Proposal to the Company (that has not been withdrawn), solely to ask such Person, and to request from such Person a written response to, questions for the purpose of clarifying (and not for the purpose of engaging, directly or indirectly, in any discussions or negotiations of any sort regarding) the material terms of such Company Acquisition Proposal, (y) simultaneously with sending any written communication to such Person, the Company shall deliver to Marvell a copy of such written communication, and (z) promptly (and in any event within 24 hours) after receiving any communication from such Person, the Company shall deliver to Marvell a copy of such communication. (Page 58) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_111 | 5.3 No Solicitation. (a) No Solicitation or Negotiation. Subject to the terms of Section 5.3(b), from December 11, 2020 until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Offer Acceptance Time, the Company Parties will cease and cause to be terminated any discussions or negotiations with any Person and its Affiliates, directors, officers, employees, consultants, agents, representatives and -63-
advisors (collectively, “Representatives”) that would be prohibited by this Section 5.3(a), request the prompt return or destruction of all non-public information concerning the Company Group theretofore furnished to any such Person with whom a confidentiality agreement was entered into at any time within the six month period immediately preceding December 11, 2020 and will (A) cease providing any further information with respect to the Company Parties or any Acquisition Proposal to any such Person or its Representatives; and (B) terminate all access granted to any such Person and its Representatives to any physical or electronic data room. Subject to the terms of Section 5.3(b), from December 11, 2020 until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Offer Acceptance Time, the Company Group will not, and will not instruct, authorize or knowingly permit any of its Representatives to, directly or indirectly, (i) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal; (ii) furnish to any Person (other than to the Parent Entities or any designees of the Parent Entities) any non-public information relating to the Company Group or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company Group (other than the Parent Entities or any designees of the Parent Entities), in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (other than informing such Persons of the provisions contained in this Section 5.3 and contacting the Person making the Acquisition Proposal to the extent necessary to clarify the terms of the Acquisition Proposal); (iv) approve, endorse or recommend any proposal that constitutes, or is reasonably expected to lead to, an Acquisition Proposal; or (v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). From December 11, 2020 until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company Merger Effective Time, the Company will not be required to enforce, and will be permitted to waive, any provision of any standstill or confidentiality agreement solely to the extent that such provision prohibits or purports to prohibit a confidential proposal being made to the Company Board (or any committee thereof). (Pages 67-68) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_125 | Section 6.3 No Solicitation; Other Offers.
(a) General Prohibitions. Subject to Section 6.3(b), from the date hereof until the earlier to occur of the termination of this Agreement pursuant to ARTICLE 10 and the Effective Time, the Company shall not, and shall cause its Subsidiaries and its and their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) not to, (i) solicit, initiate or knowingly take any action to facilitate or encourage, directly or indirectly, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Third Party in furtherance of any expression of interest, proposal or offer that constitutes or could reasonably be expected to result in an Acquisition Proposal <omitted>
(d) Application of this Provision to Representatives. Any violation or non-performance of the restrictions on the Company set forth in this Section 6.3 by any Representative of the Company or any of its Subsidiaries shall be a breach of thisSection 6.3 by the Company. (Page 46) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_75 | Section 5.3 Acquisition Proposals.
(a) No Solicitation. From the Agreement Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VII, and except as permitted by this Section 5.3, the Company shall not, and shall cause the Company Subsidiaries and its and their respective directors and officers not to, and shall direct other Representatives not to, directly or indirectly:
(i) initiate, solicit or knowingly encourage or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal (other than discussions solely to inform such Person of the provisions contained in this Section 5.3(a));
(ii) engage in, continue or otherwise participate in any discussions (other than, in response to an unsolicited inquiry from any Person relating to an Acquisition Proposal, informing such Person of the provisions contained in this Section 5.3(a)) or negotiations regarding, or provide any non-public information or data to any Person relating to, any Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal;
38
(iii) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal; or
(iv) except as permitted by Section 5.3(e), approve, endorse, recommend, or execute or enter into any letter of intent, agreement in principle, term sheet, memorandum of understanding, merger agreement, acquisition agreement, joint venture agreement or other similar Contract relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”). As soon as reasonably practicable after the date of this Agreement, the Company shall deliver a written notice to each Person that entered into a confidentiality agreement in anticipation of potentially making an Acquisition Proposal within the one hundred eighty (180) days prior to the Agreement Date requesting the prompt return or destruction of all confidential information previously furnished to any Person within the one hundred eight (180) days prior to the Agreement Date for the purposes of evaluating a possible Acquisition Proposal.
<omitted>
(h) Breach By Representatives. The Company agrees that any breach of this Section 5.3 by any of its Representatives shall be deemed to be a breach of this Agreement by the Company.
<omitted>
“Representatives” means officers, directors, employees, agents, attorneys, accountants, advisors and investment bankers. (Pages 42-43) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_72 | “Representatives” means, with respect to any Person, (i) such Person’s Affiliates and (ii) such Person’s and each such Affiliate’s respective officers, directors, employees, agents, attorneys, accountants, advisors, consultants and other authorized representatives.
<omitted>
Section 6.02 Non-Solicitation
<omitted>
(a) Except as otherwise expressly permitted by this Section 6.02, the Company shall, and shall cause its Subsidiaries and each of its and their respective directors, officers and employees to, and shall instruct and direct, and use its reasonable best efforts to cause, its other Representatives to:
<omitted>
(ii) from and after the execution of this Agreement until the Effective Time or the date, if any, on which this Agreement is validly terminated in accordance with Article VIII, not to, directly or indirectly (A) solicit, initiate, seek, propose, o r knowingly facilitate or encourage any inquiry, discussion, offer or request that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue, initiate or otherwise participate in any discussions or negotiations with, or furnish any non-public information or data relating to the Acquired Companies to, or afford access to the properties, books, records, officers or personnel of the Acquired Companies to, any Third Party with respect to an Acquisition Proposal or any inquiry, discussion or request that would reasonably be expected to lead to an Acquisition Proposal; provided, that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar bona fide agreement or obligation of any Third Party with respect to the Acquired Companies to allow such Third Party to submit an Acquisition Proposal if the Company Special Committee has determined that failure to so waive or terminate would be inconsistent with the Company’s directors’ fiduciary duties under Applicable Law, (C) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or execute or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other definitive agreement or Contract with respect to or relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or requiring the Company to abandon, terminate, breach or fail to consummate the Transactions (an “Alternative Acquisition Agreement”), or (E) resolve, commit or agree to do any of the foregoing.
<omitted>
(g) Any breach of this Section 6.02 by any director, officer or Subsidiary of the Company or any action by any Representative acting on the Company’s behalf in breach of this Section 6.02 will be deemed to be a breach of this Agreement by the Company. (Page 59) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_98 | Section 5.4 Non-Solicitation; Change in Recommendation. (a) From the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement, except as otherwise set forth in this Section 5.4, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ respective Representatives not to, directly or indirectly, (i) solicit, initiate, participate in, knowingly facilitate, knowingly assist or knowingly encourage any inquiries regarding, or the making or submission of,
any Acquisition Proposal or any inquiry, indication of interest, proposal, offer or request that would reasonably be expected to lead to an Acquisition Proposal, (ii) (A) enter into, continue or participate in any discussions or negotiations in respect of any Acquisition Proposal or any such inquiry, indication of interest, proposal, offer or request or (B) furnish to any Third Party any information in connection with any Acquisition Proposal or any such inquiry, indication of interest, proposal offer or request, (iii) enter into or adopt any letter of intent, heads of terms, memorandum of understanding or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement), (iv) recommend or approve or publicly propose to recommend, adopt or approve any Acquisition Proposal, (v) withhold or withdraw, or qualify, amend or modify in a manner adverse to Parent or Merger Sub (or publicly propose to withhold or withdraw, or qualify, amend or modify in a manner adverse to Parent or Merger Sub), the Company Board Recommendation, or resolve or agree to take any such action, (vi) fail to include the Company Board Recommendation in the Proxy Statement/Prospectus, (vii) take any affirmative actions to make any applicable “moratorium”, “control share acquisition”, “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar anti-takeover laws and regulations (“Takeover Laws”) or any applicable provisions of the Organizational Documents of the Company inapplicable to any Acquisition Proposal or (viii) resolve or agree to do any of the foregoing (any of the foregoing clauses (iv)-(vi) or clause (viii) (to the extent relating to clauses (iv)-(vi), a “Company Adverse Recommendation Change”).
<omitted>
“Representatives” means, with respect to any Person, such Person’s directors, officers, employees, agents, or representatives (including investmentbankers, financial or other advisors or consultants, auditors, accountants, attorneys, brokers, finders or other agents). (Pages 24-25) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_95 | 6.3 No Solicitation by NIC.
(a) Except as expressly permitted by this Section 6.3, from and after the date hereof until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, NIC agrees that it shall not, and shall cause the NIC Subsidiaries, and its and their respective officers and directors not to, and shall use its reasonable best efforts to cause its and the NIC Subsidiaries’ other Representatives to not, directly or indirectly, (i) solicit, initiate, or knowingly encourage or knowingly facilitate (including by way of providing information) any inquiry with respect to, or the making, submission o r announcement of, an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; (ii) participate in any negotiations regarding, or furnish to any person any information relating to NIC or any NIC Subsidiary in connection with, an Acquisition Proposal or any inquiry, proposal, or offer that would reasonably be expected to lead to an Acquisition Proposal; (iii) adopt, approve, endorse, or recommend, or publicly propose to adopt, approve, endorse, or recommend, any Acquisition Proposal; (iv) withdraw, change, amend, modify, or qualify, or otherwise publicly propose to withdraw, change, amend, modify, or qualify, in each case, in a manner adverse to Tyler, the NIC Board Recommendation; (v) fail to include the NIC Board Recommendation in the Proxy Statement; (vi) approve, authorize, or cause or permit NIC or any NIC Subsidiary to enter into, any merger agreement, acquisition agreement, reorganization agreement, letter of intent, memorandum of understanding, agreement in principle or similar definitive agreement with respect to, or any other definitive agreement or commitment providing for, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.3) (a “NIC Acquisition Agreement”); or (vii) call or convene a meeting of the NIC Stockholders to consider a proposal that would reasonably be expected to materially impair, prevent, or delay the consummation of the Transactions (any act described in clauses (iii), (iv), or (v) that is taken, authorized, or, solely with respect to clause (v), permitted by the NIC Board of Directors, a “Change of Recommendation”). (Page 35) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_88 | Section 5.4 No Company Solicitation.
(a) The Company shall, and shall cause its Representatives to, immediately (i) cease and cause to be terminated all existing discussions or negotiations with any Person conducted prior to the Parties’ execution and delivery hereof related to any Alternative Acquisition Proposal and (ii) terminate all physical and electronic data room access previously granted to any such Person or its Representatives. The Company shall not, and shall cause its Representatives not to, directly or indirectly, (1) solicit, initiate, knowingly facilitate or knowingly encourage (including by way of furnishing material non-public information), or take any other action designed to lead to, the submission by any Person of an Alternative Acquisition Proposal, (2) engage in, continue, knowingly facilitate, knowingly encourage or otherwise participate in any discussions or negotiations related to any Alternative Acquisition Proposal (other than solely in response to an inquiry that did not result from or arise in connection with a breach of this Section 5.4(a) to refer the inquiring Person to this Section 5.4(a) or to clarify the terms thereof), or provide any material non-public information to any Person in connection with, or related to, any Alternative Acquisition Proposal, (3) approve, endorse or recommend any Alternative Acquisition Proposal, (4) enter into any Contract (including any letter of intent, agreement, agreement in principle or memorandum of understanding) or similar document or commitment related to an Alternative Acquisition Proposal or (5) release or permit the release of any Person from, waive or permit the waiver of any right under, fail to enforce any provision of, or grant any consent or make any election under, any “standstill” or similar provision of any confidentiality agreement to which a Company Entity is a party; provided that, from the date hereof until receipt of the Company Stockholder Approval, the Company shall be permitted to waive any such “standstill” or similar provision that prohibits or purports to prohibit a confidential proposal being made to the Company Board (or any committee thereof), in each case, solely to the extent that the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such waiver would be inconsistent with its fiduciary duties under applicable Law and solely to the extent necessary to permit the Person bound by such “standstill” or similar provision to make a confidential Alternative Acquisition Proposal to the Company Board. (Page 22) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_142 | 5.4 No Solicitation. <omitted> (b) Except as expressly permitted pursuant to this Section 5.4 or Section 6.1, during the Pre-Closing Period, the Company shall not (and shall cause the other Acquired Corporations not to) and shall use reasonable best efforts to cause the Representatives of the Acquired Corporations not to (and not to resolve or publicly propose to), directly or indirectly, (i) continue any solicitation, knowing encouragement, discussions, activities or negotiations with any 48
Persons that may be ongoing with respect to an Acquisition Proposal or any inquiries, proposals, offers or requests with respect to or that could reasonably be expected to lead to an Acquisition Proposal, and (ii) (A) solicit, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection with or for the purpose of soliciting, knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, (C) adopt, approve, recommend, submit to stockholders or declare advisable any Acquisition Proposal, (D) enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to or that could reasonably be expected to lead to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement entered into in compliance with this Section 5.4), (E) release or permit the release of any Person from, or waive or permit the waiver of any provision of, or fail to enforce or cause to be enforced, any standstill or similar agreement to which the Company is a party, unless the Company Board determines in good faith, after consultation with independent financial advisors and outside legal counsel, that the failure to do so is inconsistent with the fiduciary duties of the Company Board to the Company Stockholders under applicable Law, (F) take any action or exempt any Person (other than Parent and its Subsidiaries) from the restriction on “business combinations” or any similar provision contained in applicable Takeover Laws or the Company’s organizational or other governing documents or grant a waiver under Section 203 of the DGCL, or (G) resolve, publicly propose or agree to do any of the foregoing. The Company shall, and shall cause its Representatives to (i) following the Agreement Date promptly (and in all events within three (3) Business Days), request the return from, or destruction by, all third parties of all non-public information previously furnished or made available to such parties by or on behalf of the Company relating to any possible Acquisition Proposal within the six (6) month period preceding the Agreement Date (and the Company shall use its commercially reasonable efforts to have such information returned or destroyed) and immediately terminate all physical and electronic data room access previously granted to any such party or its Representatives and (ii) commencing on the Agreement Date prohibit any third party (other than Parent, Purchaser and their respective Representatives) from having access to any physical or electronic data room relating to any possible Acquisition Proposal. The Company shall use its commercially reasonable efforts to enforce the terms of each confidentiality agreement with any such Person. <omitted>
(f) The Company agrees that in the event that the Company or any Representative of the Company takes any action which, if taken by the Company, would constitute a breach of this Section 5.4, the Company shall be deemed to be in breach of this Section 5.4. <omitted>
“Representatives” shall mean officers, directors, employees, attorneys, accountants, investment bankers, consultants, agents, financial advisors, other advisors and other representatives. (Pages 53-54) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_102 | 7.6. No Solicitation. <omitted>
officers, directors, trustees, managers, employees, consultants, financial advisors, attorneys, accountants and other advisors, representatives and agents(collectively, “Representatives”) <omitted>
Prior to the Effective Time, subject to Section 7.7 in the case of OCSI and Section 7.8 in the case of OCSL, each of OCSI and OCSL shall not, and shall cause its respective Affiliates, Consolidated Subsidiaries and its and their respective Representatives not to: (i) directly or indirectly solicit, initiate, induce, encourage or take any other action (including by providing information) designed to, or which could reasonably be expected to, facilitate any inquiries or the making or submission or implementation of any proposal or offer (including any proposal or offer to its stockholders) with respect to any Takeover Proposal; (ii) approve, publicly endorse or recommend or enter into any agreement, arrangement, discussions or understandings with respect to any Takeover Proposal (including any letter of intent, agreement in principle, memorandum of understanding or confidentiality agreement) or enter into any Contract or understanding (including any letter of intent, agreement in principle, memorandum of understanding or confidentiality agreement) requiring it to abandon, terminate or fail to consummate, or that is intended to or that could reasonably be expected to result in the abandonment of, termination of or failure to consummate, the Merger or any other Transaction; (iii) initiate or participate in any way in any negotiations or discussions regarding, or furnish or disclose to any Person (other than OCSL, OCSI or their respective Affiliates or Representatives) any information with respect to, or take any other action to facilitate or in furtherance of any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal; (iv) publicly propose or publicly announce an intention to take any of the foregoing actions; or (v) grant any (x) approval pursuant to any Takeover Statute to any Person (other than OCSL, OCSI or their respective Affiliates) or with respect to any transaction (other than the Transactions) or (y) unless required by applicable fiduciary duties, waiver or release under any standstill or any similar agreement with respect to equity securities of OCSI or OCSL; provided, however, that notwithstanding the foregoing, each party (A) may inform Persons of the provisions contained in this Section 7.6, and (B) shall be permitted to grant a waiver of, or terminate, any “standstill” or similar obligation of any third party with respect to equity securities of OCSL or OCSI in order to allow such third party to confidentially submit a Takeover Proposal. (Page 51) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_1 | Section 6.3. Acquisition Proposals. (a) The Company shall not, shall cause its Subsidiaries not to, and shall not authorize or knowingly permit its Representatives to, directly or indirectly: (i) initiate, solicit, or knowingly encourage or knowingly facilitate any Acquisition Proposal or any inquiries, proposals or offers that constitute, or would reasonably be expected to lead to, any Acquisition Proposal, (ii) enter into, continue, engage or participate in any discussions or negotiations with respect to any Acquisition Proposal, <omitted>
(g) The Company shall inform its Representatives with respect to the Contemplated Transactions of the provisions of this Section 6.3. The Company acknowledges and agrees that, for purposes of determining whether a breach of this Section 6.3 has occurred, the actions of the Company’s Subsidiaries and the Company’s and its Subsidiaries’ respective Representatives acting in their authorized capacities on behalf of the Company or any of its Subsidiaries shall be deemed to be the actions of the Company, and the Company shall be responsible for any breach of this Section 6.3 by its Subsidiaries and the Company’s and its Subsidiaries’ respective Representatives acting in their authorized capacities on behalf of the Company or any ofits Subsidiaries, as the case may be. (Page 24) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_35 | Section 5.4 No Company Solicitation. (a) The Company shall, and shall direct its Representatives to, immediately following the execution hereof (i) cease and cause to be terminated all existing discussions or negotiations with any Person conducted prior to the Parties’ execution and delivery hereof related to any Alternative Acquisition Proposal and (ii) terminate all physical and electronic data room access previously granted to any such Person or its Representatives. The Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, initiate, knowingly facilitate or knowingly encourage (including by way of furnishing information) the submission by any Person of an Alternative Acquisition Proposal, (B) engage in or otherwise participate in any discussions or negotiations related to any Alternative Acquisition Proposal, (C) approve, endorse or recommend any Alternative Acquisition Proposal, (D) enter into any Contract (including any letter of intent, agreement, agreement in principle or memorandum of understanding) or similar document related to an Alternative Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.4(b)) or (E) release or permit the release of any Person from, waive or permit the waiver of any right under, or grant any consent under, any “standstill” or similar provision of any Contract to which a Company Entity is a party (provided, that if the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with the Company Board’s fiduciary duties under applicable Law, the Company may waive any such provision solely to the extent necessary to permit the Person bound by such provision to make a nonpublic Alternative Company Acquisition Proposal to the Company Board). (Page 59) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_54 | Section 5.11 No Solicitation by First Choice; Superior Proposals. ( a ) Subject to Section 5.11(b), First Choice and First Choice Bank shall not, and shall instruct their respective Subsidiaries, officers, directors, employees, investment bankers, financial advisors, attorneys, accountants, consultants, Affiliates and other agents (collectively, the “First Choice Representatives”) not to, directly or indirectly, (i) initiate, solicit, induce or knowingly encourage, or knowingly take any action to facilitate the making of, any inquiry, offer or proposal which constitutes, or could reasonably be expected to lead to, an Acquisition Proposal; (ii) participate in discussions or negotiations regarding any Acquisition Proposal or furnish, or otherwise afford access, to any Person (other than Enterprise or any Enterprise Subsidiary) any information or data with respect to First Choice or any First Choice Subsidiary or otherwise in furtherance of an Acquisition Proposal; (iii) release any Person from, waive any provision of, or fail to enforce any confidentiality agreement or standstill agreement to which First Choice is a party in furtherance of an Acquisition Proposal; or (iv) enter into any agreement, agreement in principle or letter of intent with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal or any agreement, agreement in principle or letter of intent relating to an Acquisition Proposal (other than a confidentiality agreement permitted by this Section 5.11(b)(iii)), provided, however, that nothing in this Section 5.11(a) shall prohibit First Choice, the First Choice Board or any First Choice Representative from making any inquiries with respect to a bona fide unsolicited written Acquisition Proposal solely for the purpose of clarifying such Acquisition Proposal to enable the First Choice Board to make the determination described in Section 5.11(b). Any violation of the foregoing restrictions by First Choice or any First Choice Representative, whether or not such First Choice Representative is so authorized and whether or not such First Choice Representative is purporting to act on behalf of First Choice or otherwise, shall be deemed to be a breach of this Agreement by First Choice. First Choice and First Choice Subsidiaries shall, and shall cause each of the First Choice Representatives to, immediately cease and cause to be terminated any and all existing discussions, negotiations, and communications with any Persons with respect to any existing or potential Acquisition Proposal. (Page 72) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_112 | 6.06 Acquisition Proposal.
(a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, Premier Financial shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Premier Financial and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, <omitted> (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Premier Financial to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing. (Page 53) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_117 | 6.3 No Solicitation by the Company. <omitted> (b) From and after the date of this Agreement, the Company and its officers and directors will not, will cause the Company’s Subsidiaries and their respective officers and directors not to, and will use reasonable best efforts to cause the other Representatives of the Company and its Subsidiaries not to, directly or indirectly: (i) initiate, solicit, propose, endorse, knowingly encourage, or knowingly facilitate any expression of interest, inquiry, proposal or offer or the making of any expression of interest, inquiry, proposal or offer that constitutes, or would reasonably be expected to result in, a Competing Proposal; (ii) engage in, continue or otherwise participate in any discussions or negotiations with any Person with respect to, relating to, or in furtherance of a Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Competing Proposal; -53-
(iii) furnish any information regarding the Company or its Subsidiaries, or afford access to the properties, assets, books and records or employees of the Company or its Subsidiaries, to any Person in connection with or in response to any Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Competing Proposal; (iv) enter into any Contract, letter of intent or agreement in principle, or other undertaking or commitment in respect of any proposal or offer that constitutes a Competing Proposal (other than a confidentiality agreement as provided in Section 6.3(e)(ii) entered into in compliance with Section 6.3(e)(ii)); (v) submit any Competing Proposal to the vote of the stockholders of the Company; or (vi) resolve, agree or publicly propose to, or permit the Company or any of its Subsidiaries or any of its or their Representatives to agree or publicly propose to take any of the actions referred to in clauses (i) to (v) of this Section 6.3(b) (Pages 57-58) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
main | contract_30 | 7.05 Acquisition Proposals. CBTC agrees that it shall not, and shall cause its Subsidiaries and its officers, directors, agents, advisors and affiliates not to, solicit or encourage inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential information to, or have any discussions with any person relating to, any Acquisition Proposal. CBTC shall immediately cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement with any parties other than United with respect to any of the foregoing and shall use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. CBTC shall inform United promptly of all relevant details of any inquiries or contacts by third parties relating to the possible disposition of the business or the capital stock of CBTC or any merger, change or control or other business combination involving CBTC. Notwithstanding the foregoing, nothing contained in this Section 7.05 shall prohibit CBTC, prior to the CBTC Meeting and subject to compliance with the other terms of this Section 7.05, from furnishing nonpublic information to, or entering into discussions or negotiations with, any Person that makes an unsolicited, bona fide written Acquisition Proposal with respect to CBTC or any of its Significant Subsidiaries (that did not result from a breach of this Section 7.05), if, and only to the extent that (i) the CBTC Board concludes in good faith, after consultation with and based upon the advice of outside legal counsel, that the failure to take such actions would be reasonably likely to constitute a breach of its fiduciary duties to its shareholders under applicable law, (ii) before taking such actions, CBTC receives from such Person an executed confidentiality agreement providing for reasonable protection of confidential information, which confidentiality agreement shall not provide such person or entity with any exclusive right to negotiate with CBTC and shall contain terms and conditions no less favorable to CBTC with respect to confidentiality than the Confidentiality Agreement, and (iii) the CBTC Board concludes in good faith, after consultation with its outside legal counsel and financial advisors, that the Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal. CBTC shall promptly notify United in writing of CBTC’s receipt of any such Acquisition Proposal or inquiry, the material terms and conditions thereof, the identity of the Person making such Acquisition Proposal or inquiry, and shall keep United reasonably informed on a prompt basis, of the status and material terms of any such Acquisition Proposal and the status of discussions or negotiations with respect thereto, including any material amendments or proposed amendments as to price and other material terms thereof. CBTC agrees that it and its Subsidiaries will not enter into a confidentiality or other agreement with any Person subsequent to the date of this Agreement that would prohibit CBTC from providing any information to United in accordance with this Section 7.05. CBTC agrees that any violation of the restrictions set forth in this Section 7.05 by any representative of CBTC shall be deemed a breach of this Section 7.05 by CBTC. (Page 49) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_4 | “Knowledge of the Company” means the actual knowledge as of the date hereof of any fact, circumstance or condition of those officers of the Company set forth on Part 1.01(a) of the Company Disclosure Schedule after reasonable inquiry of those employees who report directly to such officers. (Page 15) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_4 | “Knowledge of the Company” means the actual knowledge <omitted> of those officers of the Company set forth on Part 1.01(a) of the Company Disclosure Schedule (Page 15) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_5 | “knowledge” means (i) with respect to the Company, the actual knowledge of those individuals set forth in Section 1.01 of the Company Disclosure Schedule and (Page 13) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_5 | “knowledge” means <omitted> the actual knowledge of those individuals set forth in Section 1.01 of the Company Disclosure Schedule (Page 13) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_6 | “Executive Officers” means, (a) with respect to GBCI and/or Glacier Bank Randall M. Chesler, Ronald J. Copher, and Donald J. Chery, and (b) with respect to AB and/or the Bank, Len E. Williams, Mark K. Olson, Judd P. Kirkham, Ryan H. Jones and Judd J. Austin. <omitted> “Knowledge” or any similar knowledge qualification in this Agreement has the following meanings: (a) AB will be deemed to have “Knowledge” of a particular fact or matter if any Executive Officer of AB or the Bank has actual knowledge of such fact or matter or if any such Person would reasonably be expected to discover or otherwise become aware of such fact or matter in the course of making a reasonable inquiry into such areas of AB’s and the Bank’s business that are under such individual’s general area of responsibility; (Page 9) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_6 | “Executive Officers” means, <omitted> (b) with respect to AB and/or the Bank, Len E. Williams, Mark K. Olson, Judd P. Kirkham, Ryan H. Jones and Judd J. Austin. <omitted> “Knowledge” or any similar knowledge qualification in this Agreement has the following meanings: (a) AB will be deemed to have “Knowledge” of a particular fact or matter if any Executive Officer of AB or the Bank has actual knowledge of such fact or matter or if any such Person would reasonably be expected to discover or otherwise become aware of such fact or matter in the course of making a reasonable inquiry into such areas of AB’s and the Bank’s business that are under such individual’s general area of responsibility; (Page 9) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_12 | “Knowledge” or any similar phrase means (a) with respect to the Company, the actual knowledge of the individuals set forth in Section 1.01 of the Company Disclosure Schedule, and (Page 15) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_12 | “Knowledge” <omitted> means <omitted> the actual knowledge of the individuals set forth in Section 1.01 of the Company Disclosure Schedule, (Page 15) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_13 | “knowledge of the Company” means the knowledge, after reasonable inquiry, of each of Mike Finley, Peter Hovenier, Derek Peterson, Dawn Callahan, Michael Zeto and Bruce Crair. With respect to Intellectual Property and Intellectual Property Rights, “reasonable inquiry” does not require the Company or any of the individuals named in the previous sentence to conduct, have conducted, obtain, or have obtained any freedom-to-operate opinions or similar opinions of counsel or any clearance searches, in each case, with respect to Patents, and no knowledge of any third-party Intellectual Property Rights that would have been revealed by such inquiries, opinions, or searches will be imputed to the Company or any such individual. (Page 5) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_13 | “knowledge of the Company” means the knowledge <omitted> of each of Mike Finley, Peter Hovenier, Derek Peterson, Dawn Callahan, Michael Zeto and Bruce Crair. (Page 5) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_15 | “Knowledge” or “knowledge” as used with respect to a Person (including references to such Person being aware of a particular matter) means the actual knowledge of, in the case of Bryn Mawr, those individuals set forth in Section 10.1 of Bryn Mawr’s Disclosure Memorandum (Page 72) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_15 | “Knowledge” or “knowledge” as used with respect to a Person <omitted> means the <omitted> knowledge of <omitted> those individuals set forth in Section 10.1 of Bryn Mawr’s Disclosure Memorandum (Page 72) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_18 | As used in this Agreement, the “ knowledge” of Cadence means the actual knowledge of any of the officers of Cadence listed on Section 9.6 of the Cadence Disclosure Schedule, (Page 85) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_18 | “ knowledge” <omitted> means the <omitted> knowledge of any of the officers of Cadence listed on Section 9.6 of the Cadence Disclosure Schedule, (Page 85) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_19 | “knowledge” will be deemed to be, as the case may be, the actual knowledge of (a) the Persons listed in Section 9.5 of the Parent Disclosure Letter with respect to Parent, US Holdco or Crystal Merger Sub, or (b) the Persons listed in Section 9.5 of the Company Disclosure Letter with respect to the Company. (Page 42) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_19 | “knowledge” will be deemed to be, as the case may be, the actual knowledge of <omitted> (b) the Persons listed in Section 9.5 of the Company Disclosure Letter with respect to the Company. (Page 42) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_22 | “Knowledge” means the actual knowledge of the individuals set forth in Section 1.1(a) of the Company Disclosure Letter and any other individuals that, following the date of this Agreement, replace or share the employment responsibilities of any such scheduled individuals, in each case after reasonable due inquiry. (Page 76) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_22 | “Knowledge” means the actual knowledge of the individuals set forth in Section 1.1(a) of the Company Disclosure Letter (Page 76) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_17 | “knowledge” of CIT means the actual knowledge of any of the officers of CIT listed on Section 9.6 of the CIT Disclosure Schedule (Page 72) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_28 | “Knowledge” or any similar phrase means (a) with respect to the Company, the collective knowledge of the individuals set forth in Section 1.1(a) of the Company Disclosure Schedule and any individuals that, following the date of this Agreement, replace or share the employment responsibilities of any such individuals, in each case after reasonable inquiry of such individuals’ direct reports who would reasonably be expected to have actual knowledge of the matter in question, and (Page 15) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_28 | “Knowledge” <omitted> means <omitted> the collective knowledge of the individuals set forth in Section 1.1(a) of the Company Disclosure Schedule (Page 15) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_31 | “knowledge” means the actual knowledge of, (a) in the case of the Company, the individuals listed in Schedule 1.1 of the Company Disclosure Letter and (Page 100) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_31 | “knowledge” means the actual knowledge of <omitted> the individuals listed in Schedule 1.1 of the Company Disclosure Letter (Page 100) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_34 | “Knowledge” means (i) with respect to the Parent Parties, the actual knowledge (without independent inquiry or investigation) of any one or more of the persons identified on Section 10.2(iii) of the Parent Disclosure Letter and (ii) with respect to the Company, the actual knowledge (without independent inquiry or investigation) of any one or more of the persons identified on Section 10.2(iii)(a) of the Company Disclosure Letter; provided that Knowledge of the Company with respect to any Joint Ventures of the Company shall be the actual knowledge (without independent inquiry or investigation) of any one or more of the persons identified on Section 10.2(iii)(a) or Section 10.2(iii)(b) of the Company Disclosure Letter; provided further, that Knowledge of the Company for purposes of Section 5.2(c) of this Agreement shall be limited to the actual knowledge (without independent inquiry or investigation) of any one or more of the Company’s Chief Executive Officer, interim Chief Financial Officer and General Counsel. (Page 81) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_34 | “Knowledge” means <omitted> (ii) <omitted> the actual knowledge <omitted> of any one or more of the persons identified on Section 10.2(iii)(a) of the Company Disclosure Letter; (Page 81) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_35 | “Knowledge” means the actual knowledge, after reasonable inquiry, of (i) for Parent, George Holm, James Hope, A. Brent King and Liz Mountjoy and (ii) for the Company, Scott McPherson, Christopher Miller, Jennifer Hulett, Brian Brandon and Greg Antholzner. (Page 96) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_35 | “Knowledge” means the actual knowledge <omitted> of <omitted> (ii) for the Company, Scott McPherson, Christopher Miller, Jennifer Hulett, Brian Brandon and Greg Antholzner. (Page 96) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_36 | “Knowledge” shall mean the actual knowledge of any of the following officers and employees of the Company or Parent, as applicable: (i) for the Company: Jim Balas, Melanie Graper, Aaron Henry and Frank Martell; and (Page 92) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_36 | “Knowledge” shall mean the actual knowledge of any of the following <omitted> Jim Balas, Melanie Graper, Aaron Henry and Frank Martell; (Page 92) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_41 | “knowledge” means, in each case after reasonable inquiry, (a) with respect to the Company, the actual knowledge of the individuals listed in Section 1.1(A) of the Company Disclosure Letter (Page 44) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_41 | “knowledge” means <omitted> the actual knowledge of the individuals listed in Section 1.1(A) of the Company Disclosure Letter (Page 44) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_44 | “Knowledge” as used with respect to a Person (including references to such Person being aware of a particular matter) shall mean those facts that are known by, (i) as to Bridge Bancorp, those Persons set forth in Bridge Bancorp Disclosure Schedule 1.1, and (ii) as to DCB, those Persons set forth in DCB Disclosure Schedule 1.1, and in each case shall include any facts, matters or circumstances set forth in any written notice from any Bank Regulator or any other material written notice received by such Person. (Page 11) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_44 | “Knowledge” <omitted> shall mean those facts that are known by, <omitted> those Persons set forth in DCB Disclosure Schedule 1.1 (Page 11) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_45 | “Knowledge” means (i) with respect to the Company, the actual knowledge, after reasonable inquiry, of each individual listed in Section 1.1(a) of the Company Disclosure Letter, (Page 16) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_45 | “Knowledge” means <omitted> the actual knowledge, after reasonable inquiry, of each individual listed in Section 1.1(a) of the Company Disclosure Letter, (Page 16) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_50 | “knowledge of the Paired Entities” o r any or any similar phrase means the actual (and not the constructive or imputed) knowledge, after reasonable inquiry, of those individuals identified in Section 10.2(b) of the Paired Entities Disclosure Schedule (Page 91) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_50 | “knowledge of the Paired Entities” <omitted> means the <omitted> knowledge <omitted> of those individuals identified in Section 10.2(b) of the Paired Entities Disclosure Schedule (Page 91) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_51 | “knowledge” means the actual knowledge of, (a) in the case of the Company, the individuals listed in Schedule 1.1 of the Company Disclosure Letter (Page 52) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_53 | “knowledge” (i) with respect to the Company means the actual knowledge of any of the individuals listed in Section 9.5(r) of the Company Disclosure Letter and (Page 86) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_53 | “knowledge” <omitted> means the actual knowledge of any of the individuals listed in Section 9.5(r) of the Company Disclosure Letter (Page 86) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_54 | “Knowledge” means, with respect to First Choice and First Choice Bank, the actual knowledge, after reasonable inquiry under the circumstances, of the Persons set forth in Section 3.01(a) of the First Choice Disclosure Schedule, and with respect to Enterprise or EB&T, the actual knowledge, after reasonable inquiry under the circumstances, of the Persons set forth in Section 4.01(a) of the Enterprise Disclosure Schedule. (Page 100) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_54 | “Knowledge” means <omitted> the actual knowledge, after reasonable inquiry under the circumstances, of the Persons set forth in Section 3.01(a) of the First Choice Disclosure Schedule (Page 100) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_52 | “knowledge” when used with respect to (i) the Company, means the actual knowledge of any fact, circumstance or condition of those employees of the Company identified in Section 8.3(i) of the Company Disclosure Letter and (ii) Parent, means the actual knowledge of any fact, circumstance or condition of those employees of Parent identified in Section 8.3(ii) of the Parent Disclosure Letter; (Page 92) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_52 | “knowledge” when used with respect to (i) the Company, means the actual knowledge <omitted> of those employees of the Company identified in Section 8.3(i) (Page 92) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_58 | “knowledge” of the Company or any similar knowledge qualification in this Agreement means the actual knowledge of the individuals listed on Section 8.3(l) of the Company Disclosure Letter in each case after reasonable inquiry. (Page 74) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_58 | “knowledge” <omitted> means the actual knowledge of the individuals listed on Section 8.3(l) of the Company Disclosure Letter (Page 74) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_60 | “Knowledge of the Company” means the actual knowledge of the individuals, in each case after reasonable inquiry, identified in Section 5.1(a)(iv) of the Company Disclosure Letter, (Page 17) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_60 | “Knowledge of the Company” means the actual knowledge of the individuals <omitted> identified in Section 5.1(a)(iv) of the Company Disclosure Letter, (Page 17) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_63 | “Knowledge” or any similar phrase means (a) with respect to the Company, the actual knowledge of the individuals set forth in Section 1.01 of the Company Disclosure Schedule, and (Page 7) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_63 | “Knowledge” <omitted> means <omitted> the actual knowledge of the individuals set forth in Section 1.01 of the Company Disclosure Schedule, (Page 7) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_62 | “Knowledge” shall mean, with respect to (x) the Company, the actual knowledge of any of those individuals set forth in Section 1.1 of the Company Disclosure Letter and (Page 74) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_62 | “Knowledge” shall mean <omitted> the actual knowledge of any of those individuals set forth in Section 1.1 of the Company Disclosure Letter (Page 74) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_66 | “Knowledge” shall mean, (i) in the case of the Company, the actual knowledge, after reasonably inquiry, of the individuals listed on Section 8.13 of the Company Disclosure Schedule and (Page 84) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_66 | “Knowledge” shall mean <omitted> the actual knowledge <omitted> of the individuals listed on Section 8.13 of the Company Disclosure Schedule and (Page 84) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_68 | “knowledge” means the actual knowledge of, (a) in the case of the Company, the individuals listed in Schedule 1.1 of the Company Disclosure Letter and (Page 125) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_68 | “knowledge” means the actual knowledge of <omitted> the individuals listed in Schedule 1.1 of the Company Disclosure Letter (Page 125) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_67 | “Knowledge” means, (a) with respect to the Company, the actual knowledge, after reasonable inquiry, of each of Maria Perrin, Doug Williams, Jacob Sims (in each case of the foregoing individuals, solely with respect to the representations and warranties contained in Article IV that are relevant to their respective roles at the Company), Jeffrey Sherman, Meredith Bjorck (for purposes of Section 4.09(a)(xiv), the reasonable inquiry of Meredith Bjorck shall be deemed to include reasonable inquiry of Bill Lucia), David Alexander and Greg Aunan, and (Page 7) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_67 | “Knowledge” means <omitted> the <omitted> knowledge, <omitted> of each of Maria Perrin, Doug Williams, Jacob Sims <omitted> , Jeffrey Sherman, Meredith Bjorck <omitted> , David Alexander and Greg Aunan (Page 7) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_73 | “Knowledge” means with (a) with respect to the Company, the knowledge of the individuals identified on Part 1.1 of the Company Disclosure Schedule, after reasonable inquiry, (Page 124) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_73 | “Knowledge” means <omitted> the knowledge of the individuals identified on Part 1.1 of the Company Disclosure Schedule, (Page 124) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_79 | “knowledge” means the actual knowledge of, (a) in the case of the Company, the individuals listed in Schedule 1.1 of the Company Disclosure Letter and (b) in the case of Parent, the individuals listed in Schedule 1.1 of the Parent Disclosure Letter, in each case after reasonable inquiry of those employees of such Party and its Subsidiaries who would reasonably be expected to have actual knowledge of the matter in question. (Page 83) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_79 | “knowledge” means the actual knowledge of <omitted> the individuals listed in Schedule 1.1 of the Company Disclosure Letter (Page 83) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_87 | “Knowledge” means, assuming due inquiry under the facts or circumstances, the actual knowledge of the chief executive officer, president, chief financial officer, chief credit officer or general counsel of Nicolet or the Company, as the context requires. (Page 57) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_87 | “Knowledge” means <omitted> the actual knowledge of the chief executive officer, president, chief financial officer, chief credit officer or general counsel of Nicolet or the Company (Page 57) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
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